The legal institution of punishment presents a distinctive moral challenge because it

involves a states infliction of intentionally harsh, or burdensome, treatment on some of

its memberstreatment that typically would be considered morally impermissible. Most
of us would agree, for instance, that it is typically impermissible to imprison people, to
force them to pay monetary sanctions or engage in community service, or to execute
them. The moral challenge of punishment, then, is to establish what (if anything) makes
it permissible to subject those who have been convicted of crimes to such treatment.
Traditionally, justifications of punishment have been either consequentialist or
retributivist. Consequentialist accounts contend that punishment is justified as a means
to securing some valuable endtypically crime reduction, by deterring, incapacitating,
or reforming offenders. Retributivism, by contrast, holds that punishment is an
intrinsically appropriate (because deserved) response to criminal wrongdoing. Each
type of account has been roundly criticized, on a variety of grounds, by theorists in the
other camp. In an effort to break this impasse, scholars have attempted to find
alternative strategies that incorporate certain consequentialist or retributivist elements
but avoid the standard objections directed at each. Each of these accounts has, in turn,
met with criticism. Finally, abolitionists argue that none of these defenses of
punishment is satisfactory, and that the practice is morally impermissible; the salient
question for abolitionists, then, is how else (if at all) society should respond to those
forms of wrongdoing that we now punish.
This article first looks more closely at what punishment is; in particular, it examines the
distinctive features of punishment in virtue of which it stands in need of justification. It
then highlights various questions that a full justification of punishment would need to
answer. With these questions in mind, the article considers the most prominent
consequentialist, retributivist, and hybrid attempts at establishing punishments moral
permissibility. Finally, it considers the abolitionist alternative.

Table of Contents
1. What is Punishment?
2. Various Questions
3. Consequentialist Accounts
1.
Deterrence
2.
Incapacitation

b.
1.

b.
1.

b.
c.

3.
Offender Reform
4.
Sentencing
5.
Objections and Responses
Retributivist Accounts
Deserved Suffering
2.
Fair Play
3.
Censure
4.
Other Versions
5.
Sentencing
Alternative Accounts
Rights Forfeiture
2.
Consent
3.
Self-Defense
4.
Moral Education
5.
Hybrid Approaches
Abolitionism
References and Further Reading

1. What is Punishment?

When we consider whether punishment is morally permissible, it is important first to be

clear about what it is that we are evaluating. Theorists disagree about a precise
definition of punishment; nevertheless, we can identify a number of features that are
commonly cited as elements of punishment.
First, it is generally accepted that punishment involves the infliction of a burden. The
state confines people in jails and prisons, where liberties such as their freedom of
movement and association, and their privacy, are heavily restricted. It imposes often
heavy monetary sanctions or forces people to take part in community service work. It
subjects people to periods of probation during which their movements and activities are
closely supervised. In the most extreme cases, it executes people. Theorists disagree on
precisely how to characterize this feature of punishment. Some describe punishment as
essentially painful, or as involving the infliction of suffering, harsh treatment, or harm.
Others instead write of punishment as involving the restriction of liberties. However we
characterize the specific nature of the burden, it is relatively uncontroversial that
punishment in its various forms is burdensome.

One might object that some prisoners could become accustomed to incarceration and so
not see it as a burden, or that the masochist might even enjoy his corporal punishment.
In response to supposed counterexamples such as these, a defender of the
burdensomeness feature of punishment might argue that the comfortable prisoner
and the masochist are still punished insofar as they are treated in ways that
are typically regarded as burdensome by those on whom they are inflicted.
Alternatively, one might argue that a particular case of incarceration, corporal
punishment, and so forth, indeed does not count as punishment if the prisoner does not
find it burdensome (Boonin, 2008: 8-10). Whatever one makes of these attempted
counterexamples, it remains the case that punishment theorists by and large agree that
burdensomeness is an essential feature of punishment.
But punishment is not merely burdensome. A second widely accepted feature of
punishment is that it is intended to be burdensome. This feature distinguishes
punishment from other forms of treatment that may be burdensome but are not
intentionally so. Many people undoubtedly regard it as burdensome to pay their taxes,
for instance, but presumably most do not regard this as a form of punishment. This is
because although taxes may be foreseeably burdensome, they are not intentionally so.
That is, the state does not levy taxes intending for them to be burdensome; rather, the
intention is to pay for roads, an education system, and other public goods. That paying
for these goods is burdensome to many taxpayers is incidental, and if there were a way
to collect sufficient revenue to pay for needed public goods without this being a burden
to taxpayers, then so much the better.
Punishment, however, is different. Punishment is intended to be burdensome. If it were
not burdensome, then it would not be doing its job. For instance, as we will see below,
some theorists contend that the aim of punishment is to reduce crime by deterring
potential criminals. But for the threat of punishment to be the sort of thing likely to
deter criminals, the punishment itself must be burdensome. Other theorists
(retributivists) contend that wrongdoers deserve to suffer, and that punishment is
justified as the infliction of this deserved suffering. Here again, the burdensomeness of
punishment is not merely incidental, it is intended.
Of course, not all impositions of intended burdens count as punishment. A third
commonly accepted feature of punishment is that it is imposed on someone guilty of an
offense, as a response to that offense. Actually, there is some disagreement about this

point. To count as punishment, must it be imposed on someone who is actually guilty of

a crime? Or would it make sense to talk of punishing an innocent person (either
mistakenly or intentionally)? Some scholars contend that punishment must be of a
guilty person. Susan Dimock writes, The innocent may be victimized by the penal
system, but they cannot be punished (Dimock, 1997: 42). By contrast, H. L. A. Hart
contends that we should acknowledge not only punishment of actual offenders, but also
cases (which he calls sub-standard or secondary) of punishment of personswho
neither are in fact nor supposed to be offenders (see Hart, 1968: 5).
A fourth feature of punishment, widely acknowledged at least since the publication of
Joel Feinbergs seminal 1970 article The Expressive Function of Punishment is that it
serves to express condemnation, or censure, of the offender for her offense. As Feinberg
discusses, it is this condemning element that distinguishes punishment from what he
calls nonpunitive penalties such as parking tickets, demotions, flunkings, and so forth.
(Feinberg, 1965: 398-401). As we will see below, some scholars have taken this
expression of censure to be central to the justification of punishment. But whether or
not it plays a role in the justification of the practice, this expressive function is typically
accepted as a distinctive feature of punishment.
Finally, it is worth highlighting that this article focuses on the legal institution of
punishmentrather than, say, parents punishment of their children or other
interpersonal cases of punishment (but see Zaibert, 2006). Legal theorists often assert
as one of punishments features that it must be imposed by a properly constituted legal
authority (typically, the state). They thereby aim to differentiate legal punishment from
private vengeance or vigilantism. This does not mean we must accept uncritically that
the state is the proper authority to impose punishment. Ideally, a full account of
punishment should provide a plausible answer to why (or if) the state has an exclusive
right to impose punishment.
These, then, are the most commonly cited features of punishment: punishment involves
the states imposition of intended burdensburdens that express social condemnation
on people (believed to be) guilty of crimes, in response to those crimes. This is not
intended as a precise definition or a set of necessary and sufficient conditions for
punishment. Theorists may disagree about particular elements, or especially about how
exactly to flesh out the various elements. But this description is sufficient to give us a
sense of why punishment stands in need of justification: It involves the states treating

some of its members (imposing intentionally burdensome, censuring sanctions) in ways

that typically would be morally impermissible.

2. Various Questions
When theorists ask whether punishment is justified, they typically assume a backdrop in
which the legal system administering punishment is legitimate, and the criminal laws
themselves are reasonably just. This is not to say that they assume that all legal systems
are legitimate and all criminal laws are reasonably just in the actual world. Indeed,
questions of political legitimacy and criminalization are important topics that have
received a great deal of attention in their own right. But even in societies in which the
legal system is legitimate and the laws are reasonably just, a general question arises of
whether (and if so, why) it is permissible for the state to impose intended, censuring
burdens on those who violate the laws.
This general question of punishments moral permissibility actually comprises a number
of particular questions. A full normative account of punishment should provide answers
to each of these questions.
First, there is the question of punishments function, or purpose. Put simply, what
reason is there to want an institution of punishment? H. L. A. Hart referred to this as
punishments general justifying aim, although this term may be misleading in two
ways: on one hand, to say that the aim is justifying implies that it is sufficient, by itself,
to establish punishments permissibility. As we will see, some scholars point out that
more is needed to justify punishment than merely citing its function, no matter how
valuable. On the other hand, talk of a justifying aim seems to privilege consequentialist
accounts, according to which punishment is justified as a means to some socially
valuable goal. But even for retributivist accounts, according to which punishment is
justified not as a means to some end but rather as an intrinsically appropriate response
to wrongdoing, we still need an explanation of why such a response is important enough
to warrant the states institution of punishment. A first question, then, is what
sufficiently important function punishment serves.
Even if we establish some sufficiently valuable function of punishment, this may not be
enough to justify the practice. Some scholars contend that a crucial question is whether
punishment violates the moral rights of those punished. If punishing offenders violates

their rights, then it may be morally impermissible even if it serves some important
function (Simmons, 1991; Wellman, 2009). What we need, according to this view, is an
account of why, in principle, the practice of imposing intended burdens on people in the
ways characteristic of punishment does not violate their moral rights.
In addition to justifying the practice of punishment in general, a complete account of
punishment should also provide guidance in determining how to punish in particular
cases. Even if the institution of punishment is morally permissible, a particular sentence
may be impermissible if it is excessively harsh (or on some accounts, if it is too lenient).
What principles and considerations should guide assessments of how severely to
punish?
Relatedly, although this point has received less attention, we should ask not only about
the appropriate severity of punishment but also about the proper mode of punishment.
We may critique certain sentences not in virtue of their severity but because we believe
the form of punishment (incarceration, capital punishment, and so forth) is in some
sense inappropriate (Reiman, 1985; Moskos, 2011). What considerations, then, should
guide assessments of whether imprisonment, fines, community service, probation,
capital punishment, or some other form of punishment is the appropriate response to
instances of criminal wrongdoing?
Finally, as mentioned, it is important to ask about the states role as the agent of
punishment. Why is it the states right to impose punishment (if indeed it is)?
Furthermore, what gives the state theexclusive right to punish (Wellman, 2009)? Why
may victims not inflict punishment on their assailants (or hire someone to inflict the
punishment)? Another question related to the proper agent of punishmenta question
that has become increasingly salient in the decades following the Nuremberg trialsis
when (if ever) the international community, rather than a particular state, can be the
proper agent of punishment. What sorts of crime, and which criminals, are properly
accountable to the institutions of international criminal law rather than (or perhaps in
addition) to the domestic legal systems of particular states?
As we will see, various accounts of punishment focus on different questions. Also, some
accounts seek to answer each of these questions by appealing to the same moral
principles or considerations, whereas others appeal to different considerations in
answering the different questions.

3. Consequentialist Accounts
Consequentialism holds that the rightness or wrongness of actionsor rules for action,
or (relevant to our context) institutionsis determined solely by their consequences.
Thus consequentialist accounts of punishment defend the practice as instrumentally
valuable: the consequences of maintaining an institution of legal punishment, according
to this view, are better than the consequences of not having such an institution. For
many consequentialists, the burden of punishment itself is seen as a negative
consequencean evil, as Jeremy Bentham called it (Bentham, 1789: 158). Thus for
punishment to be justified, it must be the case that it brings about other, sufficiently
valuable consequences to outweigh its onerousness for the person on whom it is
inflicted. Typically, punishment is defended as a necessary means to the socially
valuable end of crime reduction, through deterrence, incapacitation, or offender reform.

a. Deterrence
Deterrence accounts contend that the threat of punishment serves as a disincentive for
potential criminals. On such accounts, for the threat of punishment to be effective as a
deterrent, it must be credibleit must have teeth, so to speakand thus the legal system
must follow through on the threat and impose punishment on those who violate laws.
Theorists have distinguished two potential audiences for the deterrent threat: first, the
threat of punishment might serve to dissuade members of the public generally from
committing crimes that they might otherwise have committed. This is
called general deterrence. Second, for those who do commit crimes and are subjected to
punishment, the threat of future punishment (namely, the prospect of having to
experience prison again, or pay further fines, and so forth) might provide a disincentive
to reoffending. This is typically referred to as specific (or special) deterrence.

b. Incapacitation
Punishment might also help to reduce crime by incapacitating criminals. Unlike
deterrence, incapacitation does not operate by dissuading potential offenders.
Incapacitation instead aims to remove dangerous people from situations in which they
could commit crimes. Imprisoning someone in a solitary confinement unit, for instance,
may or may not convince her not to commit crimes in the future; but while she is locked
up, she will be unable to commit (most) crimes.

c. Offender Reform

A third way in which punishment might help to reduce crime is by encouraging or

facilitating offender reform. The aim of reform is like that of specific deterrence in one
respect: both seek to induce a change in the offenders behavior. That is, the aim for
both is that she should choose not to reoffend. In this respect, both reform and specific
deterrence differ from incapacitation, which is concerned with restricting rather than
influencing offenders choices. But reform differs from specific deterrence in terms of
the ways in which each seeks to induce different choices. Punishment aimed at specific
deterrence provides prudential reasons: we impose onerous treatment on an offender in
hopes that her aversion to undergoing such treatment again will convince her not to
reoffend. Punishment with the aim of offender reform, by contrast, aims to reshape
offenders moral motives and dispositions.

d. Sentencing
Each of these aimsdeterrence, incapacitation, and reformwill have distinct
implications with respect to sentencing. Punishment aimed at reducing crime through
deterrence would in general need to be severe enough to provide members of the public
with a significant incentive not to offend, or to provide offenders with an incentive not
to reoffend. Also, as Bentham explained, the severity of sentences should reflect the
relative seriousness of the crimes punished (Bentham, 1789: 168). More serious crimes
should receive more severe punishments than do less serious crimes, so that prospective
offenders, if they are going to commit one crime or the other, will have an incentive to
choose the less serious crime.
For punishment aimed at reducing crime through incapacitation, sentences should be
restrictive enough that dangerous offenders will be unable to victimize others (so, for
instance, prison appears generally preferable to fines as a form of incapacitative
punishment). In terms of duration, incapacitative sentences should last as long as the
offender poses a genuine threat. Similarly, sentences aimed at reducing crime through
offender reform should be tailored, in terms of the form, severity, and duration of
punishment, in whatever ways are determined to be most conducive to this aim.
Finally, insofar as punishment itself is considered to be, in Benthams words, an evil,
the consequentialist is committed to the view that sentences should be no more severe
than is necessary to accomplish their aim. Thus whether she endorses deterrence,
incapacitation, reform, or some other aim (or a combination of these), the

consequentialist should also endorse a parsimony constraint on sentence severity

(Tonry, 2011). After all, to impose sentences that are more severe than is necessary to
accomplish punishments aim(s) would appear to be an infliction of gratuitous suffering
and so, from a consequentialist perspective, unjustified.

e. Objections and Responses

Typical consequentialist accounts of punishment contend that the practice is justified
because it produces, on balance, positive consequences by helping to reduce crime,
either through deterrence, incapacitation, or offender reform. Critics have objected to
such consequentialist accounts on a number of grounds.
First, some have objected to deterrence accounts on grounds that punishment does not
actually deter potential offenders. A key worry is that often (perhaps typically) those
who commit crimes act impulsively or irrationally, rather than as efficient calculators of
expected utility, and so they are not responsive to the threat of punishment. The
question of whether punishment deters is an empirical one, and criminological studies
on this question have come to different conclusions. In general, evidence seems to
indicate that punishment does have some deterrent effect, but that the certainty of
apprehension plays a greater deterrent role than does the severity of punishment
(Nagin, 2013).
A similar line of objection has been raised against reform-based accounts of
punishment. Criminological research in the 1970s led many scholars and practitioners
to conclude that punishment did not, indeed could not, promote offender reform (the
mantra nothing works was for many years ubiquitous in these discussions). More
recent criminological work, however, has generated somewhat more optimism about the
prospects for offender reform (Cullen, 2013).
Whereas critics have questioned whether punishment deters or facilitates offender
reform, there is little doubt that punishmentespecially incarcerationincapacitates
(prisoners may still have opportunities to commit crimes, but their opportunities are at
least significantly limited.) Critics have raised questions, however, about the link
between incapacitation and crime reduction. For punishment to be justified on
incapacitative grounds, after all, it would need to be the case not only that punishment
in fact incapacitates, but that in so doing it helps to reduce crime. At least in some cases,

there is reason to doubt whether the link between incapacitation and crime reduction
holds. Most notably, locking up drug dealers or gang members does not appear to
decrease drug- or gang-related crimes, because the incapacitated person is quickly and
easily replaced by someone else (Tonry, 2006: 31-32).
Even if we accept, for arguments sake, that punishment contributes to crime reduction,
it still may not be justified on consequentialist grounds if it also generates costs that
outweigh its benefits. The costs of punishment are not limited to the suffering or other
burdens inflicted on offenders, although these burdens do matter from a
consequentialist perspective. Scholars have also highlighted burdens associated with
certain forms of punishmentin particular, incarcerationfor offenders families and
communities (Mauer and Chesney-Lind, 2002). These costs matter in consequentialist
calculations. In addition, we must consider the financial costs of maintaining an
institution of criminal punishment. In 2012, the Vera Institute of Justice released a
study of 40 U.S. states that found that the total taxpayer cost of prisons in these states
was $39 billion. Thus defenders of punishment on consequentialist grounds must show
not only that punishment is beneficial, but also that its benefits are significant enough to
outweigh its costs to offenders and to society generally.
Furthermore, even if punishments benefits outweigh its costs, consequentialists must
make the case that these benefits cannot be achieved through some other, less
burdensome response to crime. If there are alternatives to punishment that are equally
effective in reducing crime but are less costly overall, then from a consequentialist
perspective, these alternatives would be preferable (Boonin, 2008: 53, 264-67).
Suppose, however, that the benefits of punishment outweigh its harms and also that
there are no alternatives to punishment that generate, on balance, better overall
consequences. In this case, punishment would be justified from a consequentialist
perspective. Many theorists, however, do not endorse consequentialism. Indeed, the
most prominent philosophical objections to consequentialist accounts of punishment
take aim specifically at supposed deficiencies of consequentialism itself.
Perhaps the most common objection to consequentialist accounts is that they are unable
to provide principled grounds for ruling out punishment of the innocent. If there were
ever a situation in which punishing an innocent person would promote the best
consequences, then consequentialism appears committed to doing so. H. J. McCloskey

imagines a case in which, in the wake of a heinous crime, a small-town sheriff must
decide whether to frame and punish a person whom the townspeople believe to be guilty
but the sheriff knows is innocent if doing so is the only way to prevent rioting by the
townspeople (McCloskey, 1957: 468-69). If punishing the innocent person defuses the
residents hostilities and prevents the riotsand thereby produces better overall
consequences than continuing to search for the actual criminalthen it appears that the
consequentialist is committed to punishing the innocent person. But knowingly
punishing an innocent person strikes most of us as deeply unjust.
Consequentialists have responded to this objection in various ways. Some contend that
what McCloskey describes is not actually punishment, because punishment, by
definition, is a response to those guilty of crimes (or at least believed to be guilty,
whereas in McCloskeys example, the sheriff knows the person to be innocent). H. L. A.
Hart refers to this response as the definitional stop and he suggests it is unhelpful
because it seeks to define away the interesting normative questions. Setting terminology
aside, the relevant questions are whether and why it is permissible to impose intended,
condemnatory burdens on those (believed to be) guilty of crimes. The consequentialists
response is that doing so produces the best consequences, but then it seems that the
consequentialist should be committed to imposing such burdens on those not (believed
to be) guilty of crimes when doing so produces the best consequences. Such a practice
would strike many as morally wrong, however. Thus the objection arises for
consequentialists regardless of definitions.
Others have responded to the objection that consequentialism would allow for
punishing the innocent by suggesting that scenarios such as McCloskey suggests are so
far-fetched that they are unlikely to occur in the real world. In actual cases, punishing
the innocent will rarely, if ever, produce the best consequences. For instance, some
contend that the sheriff in the example would likely be found out, and as a result the
public would lose its trust in law enforcement officials; the long-term consequences,
therefore, would be worse than if the sheriff had not punished the innocent person. As
critics have pointed out, however, this response only shows that punishing the innocent
will usually be ruled out by consequentialism. There might still be cases, albeit rare, in
which punishing the innocent would generate the best consequences (maybe the sheriff
is adept at covering up his act). At best, then, consequentialism seems only able to
ground a contingent prohibition on punishing the innocent. Some consequentialists
have accepted this implication, albeit reluctantly (see Smart, 1973: 69-73).

A similar objection to consequentialist accounts is that they cannot provide a principled

basis for the widely held intuition that punishment should be no more severe than an
offender deserves (where desert is the product of the seriousness of the offense and the
offenders culpability). On this view, it is morally wrong to subject those guilty of
relatively minor crimes to harsh punishment; such punishment would be excessive. For
consequentialist accounts, though, it appears that excessively harsh sentences would be
permitted (indeed, required) if they produced the best overall consequences.
Jeremy Bentham contended that consequentialism does have the resources to ground
relative proportionality in sentencingthat is, lesser offenses should receive less severe
sentences than more serious offenses receive. His reasoning was that if sentences for
minor offenses were as harsh as for more serious offenses, potential offenders would
have no incentive to commit the lesser offense rather than the more serious one
(Bentham, 1789: 168). If Bentham is right, then there is a consequentialist basis for
punishing shoplifters, for instance, less harshly than armed robbers. But this does not
rule out punishing shoplifters harshly (more harshly than most of us would think
justified) and punishing armed robbers even more harshly; again, a consequentialist
would seem committed to such a sentencing scheme if it promoted the best overall
consequences.
Defenders of consequentialist sentencing have another response available, namely that
excessively harsh sentences do not, in practice, produce the best consequences. For
instance, criminological research suggests a) that stiffer sentences do not produce
significant deterrent effects (it is primarily the certainty of punishment rather than its
severity that deters); b) that extremely long prison terms are not justified on
incapacitative grounds (for one reason, most offenders age out of criminal behavior
anyway by their 30s or 40s); and c) that extremely harsh sentences may, on balance,
have criminogenic effects (that is, they may make people more likely to reoffend). This
sort of response, of course, makes the prohibition of disproportionate punishment a
contingent matter; in other words, if extremely harsh sentences did help to reduce crime
and this produced, on balance, the best overall consequences, then consequentialism
would appear to endorse such sentences. Critics thus charge that consequentialist
accounts are unappealing insofar as they are unable to ground more than a contingent
prohibition on disproportionately harsh punishment.

Even if we prohibit punishment of the innocent or disproportionate punishment of the

guilty, a third, Kantian objection holds that consequentialist punishment is not properly
responsive to the person being punished. According to this objection, to punish
offenders as a means to securing some valuable social end (namely, crime reduction) is
to use them as mere means, rather than respecting them as ends in themselves (Kant,
1797: 473; Murphy, 1973).
In response to this objection, some scholars have contended that although
consequentialists regard punishment as a means to an end, punishment does not treat
offenders as mere means to this end. If we limit punishment to those who have been
found guilty of crimes, then this treatment is arguably responsive to their choices and
does not use them as mere means. Kant himself suggested that as long as we reserve
punishment only for those found guilty of crimes, then it is permissible to punish with
an eye toward potential benefits (Kant, 1797: 473).
A more recent objection to consequentialist systems of punishment, developed by R. A.
Duff (1986, 2001), charges that consequentialist systems of punishment, with their
focus on crime reduction, treat offenders as dangerous outsidersas the they whom
we, the law-abiding members of society, must threaten, incapacitate, or remold to
ensure our safety. Such a conception of the criminal law is inappropriately exclusionary,
Duff claims. The criminal law, and the institution of punishment, in a liberal polity
should treat offenders inclusively, as (still) members of the community who despite
having violated its values could, and should, nevertheless (re)commit to these values.
In response, one might object that systems of punishment aimed at crime reduction
need not be exclusionary in the way Duff suggests. In particular, punishment that aims
to deter crime might be said to treat all community members equally, namely as
potential offenders. For those who have not committed crimes, deterrent punishment
regards them as potential offenders and aims to provide an incentive not to offend (that
is, general deterrence). For those who have committed crimes, deterrent punishment
similarly regards them as potential (re)offenders and aims to provide an incentive not to
(re)offend (that is, specific deterrence). In this way, punishment with a deterrent aim
might be said to speak to all community members in the same terms, and thus not to be
objectionably exclusionary.

4. Retributivist Accounts
As we have seen, consequentialist accounts of punishment are essentially forwardlookingpunishment is said to be justified in virtue of the consequences it helps to
produce. A different sort of account regards punishment as justified not because of what
it brings about, but instead because it is an intrinsically appropriate response to crime.
Accounts of the second sort have traditionally been described as retributivist. In general,
we can say that retributivism views punishment as justified because it is deserved,
although particular accounts differ about what exactly this means.
Theorists have distinguished two varieties of retributivism: positive retributivism and
negative retributivism. Positive retributivism is typically characterized as the view that
an offenders desert provides a positive justifying reason for punishment; in other
words, the state should punish those who are found guilty of criminal wrongdoing
because they deserve it. Negative retributivism, by contrast, provides a constraint on
punishment: punishment is justified only of those who deserve it. Because negative
retributivism provides only a constraint on punishment, not a positive reason to punish,
the negative retributive constraint has featured prominently in attempts at mixed
accounts of punishment; such accounts allow punishment for consequentialist aims as
long as the punishment is only of those who deserve it. On the other hand, because
negative retributivism does not provide a positive justifying reason to punish, some
scholars argue that it does not properly count as retributivism at all.
The distinction between retributivism and consequentialism is not always a neat one.
Notice that one might endorse the claim that punishment is a deserved response to
wrongdoing and then further assert that it is a valuable state of affairs when wrongdoers
get the punishment they deservea state of affairs that therefore should be promoted.
On this type of account, retribution itself essentially becomes the consequentialist aim of
punishment (Moore, 1903; Zaibert, 2006). Nevertheless, in keeping with general
practice, this article will treat retributivism as distinct from, and in competition with,
consequentialist accounts.

a. Deserved Suffering
One common version of retributivism contends simply that wrongdoers deserve to
suffer in proportion to their wrongdoing. Often this claim is made by way of appeal to
intuitions about particular, usually heinous crimes: surely the unrepentant war criminal,

for example, who has tortured and murdered many innocent people, deserves to suffer
for what he has done. Proponents argue that retributivism is justified because it best
accounts for our intuitions about particular cases such as these (Moore, 1987; Kleinig,
1973).
Justifying retributivism requires more, of course, than merely appealing to common
intuitions about such cases. After all, even if many (even most) people do feel, in hearing
reports of terrible crimes, that the perpetrators deserve to suffer, not everyone feels this
way. And even those who do have such intuitions may not feel entirely comfortable with
them. What we would like to know is whether the intuitions themselves are justified, or
whether, for instance, they amount to an unhealthy desire for vengeance. Critics
contend that those who rely on our intuitions about particular cases as evidence that
retributivism is justified fail to provide the needed explanation of why the intuitions are
justified.
There are other questions for such a view: does any sort of moral wrongdoing deserve to
be met with suffering, or only some cases of wrongdoing? Which ones? And why is
meting out deserved suffering for wrongdoing properly the concern of the state?

b. Fair Play
Another prominent type of retributivist account begins with a conception of society as a
cooperative venture in which each member benefits when there is general compliance
with the rules governing the venture. Because each of us benefits when everyone else
plays by the rules, fairness dictates that we each have an obligation to reciprocate by
playing by the rules, too. A criminal, like other members of society, benefits from
general compliance with laws, but she fails to reciprocate by complying with the laws
herself. She essentially becomes a free rider, because she counts on others to play by the
rules that she violates. By failing to restrain herself appropriately, she gains an unfair
advantage over others in society. The justification of punishment is that it corrects this
unfair advantage by inflicting burdens on the offender proportionate to the benefit she
gained by committing her crime (Morris, 1968).
On the fair play view, then, punishment is justified as a deserved response to an unfair
advantage taken against members of society generally. Such an account offers a
relatively straightforward answer to the question of why punishment is the states

business. The state has an interest in assuring those who accept the burdens of
compliance with the law that they will not be at a disadvantage to those who would freeride on the system.
Critics of the fair play view have argued that it provides a counterintuitive conception of
the crime to which punishment responds. It seems strange, for instance, to think of the
wrong perpetrated by, say, a rapist as a sort of free-riding wrong against society in
general, rather than an egregious wrong perpetrated against the victim in particular. In
response to this charge, Dagger (1993) argues that crimes may be wrong in both senses:
they may wrong particular victims in various ways, but they are also in every case
wrongs in the sense of free riding on society generally.

c. Censure
Another influential version of retributivism begins with the claim, discussed earlier, that
one of punishments distinctive features is that it communicates censure, or
condemnation, of the offender for her offense. This retributivist account, developed
most notably by R. A. Duff (1986, 2001), takes the censuring feature as the key to
establishing punishments moral permissibility. Offenders deserve to be censured for
what they have done, and punishment is justified because it delivers this censuring
message.
Duff understands crimes as public wrongs, as violations of important public values. It
follows on this account that the state is the appropriate agent of punishment; the state
properly calls offenders to account for their violations of the political communitys
shared values.
Censuring involves, in part, urging an offender to think about the wrong she has done,
to repent and (re)commit herself to the values that she has violated. Thus it follows from
censure accounts such as Duffs that offender self-reform is an aim of punishment. But
notice the crucial distinction between this sort of account and the variety of
consequentialist account that aims at offender reform. Although offender reform is an
aim of punishment on the censure account, it is not ajustifying aim. In other words, on
the censure view, punishment is not justified insofar as it tends to promote offender
reform. Rather, punishment is justified because it communicates deserved censure. Part
of what it means to censure, however, is to urge wrongdoers to repent and reform.

A common critique of the censure view asks why punishmentthat is, the imposition of
intended burdensis the proper way to censure wrongdoers. It seems that the polity
could communicate messages of censure to offenders without imposing intended
burdens; for example, it could issue a public proclamation condemning the crime and
blaming the offender. Why, then, is the hard treatment characteristic of punishment an
appropriate vehicle for conveying such messages? One type of response, offered by Duff
and others (see also Falls, 1987), holds that hard treatment is needed to convey
adequately the politys condemnation of crimes. Nonpunitive censureblaming without
imposing intended hard treatmentwould fail to communicate the seriousness of the
wrongdoing.
Also, on Duffs account, hard treatment can function to induce in offenders the sort of
moral reflection that may lead to repentance, reform, and reconciliation (with their
victims and the community more generally). Some have objected, however, that such an
account implies too intrusive a role for the state. It is not a proper function of the state,
critics charge, to seek to induce repentance and moral reform in offenders. Thus even
some scholars who agree that punishment is justified as a form of censure nevertheless
disagree about the role of the hard treatment element. For Andrew von Hirsch (1993),
for instance, the intended burdens characteristic of punishment act as a sort of
prudential supplement: punishment, as censure, serves to remind offenders (and
community members) of the moral reasons to comply with the law. Punishment, as hard
treatment, also provides a prudential threat as a sort of supplement for those of us for
whom the moral message is not sufficient. One worry with such an account, however, is
whether the prudential threat will tend to drown out the moral message.

d. Other Versions
Alternative versions of retributivism have been offered. Some scholars, for instance,
argue that those who commit crimes violate the trust of their fellow community
members. Trust, on this account, is an essential feature of a healthy community.
Offenders undermine this trust when they victimize others. In such cases, punishment is
a deserved response to such violations and an appropriate way to help maintain (or
restore) the conditions of trust among community members (see Dimock, 1997).
Advocates of this trust-based variety of retributivism must explain which violations of
trust rise to the level that warrants criminalization, so that violators should be subject to
punishment. Also, we might question whether such accounts are purely retributivist

after all: if punishment is justified at least in part as a means of helping to maintain

conditions of trust in a community, then this appears to be a consequentialist rationale.
On the other hand, if punishment is justified not for what it helps to bring about but
rather as an intrinsically appropriate (because deserved) response to violations of trust,
then we need an explanation of why such violations deserve punishment, perhaps as
opposed to some other form of response.
Another form of retributivism holds that offenders incur a moral debt to their victims,
and so they deserve punishment as a way to repay this debt (McDermott, 2001). This
moral debt is distinct from the material debt that an offender may incur. In other words,
a person who robs from another person incurs a material debt equal to the value of
whatever was stolen, but she also incurs a moral debt for violating the victims rights.
The offender takes not only a material good from the victim but also a moral good.
Repayment of material goods does not settle this moral debt, and so punishment is
needed to fill this role. As Daniel McDermott characterizes it, punishment serves to deny
the ill-gotten moral good to the perpetrator (McDermott, 2001: 424).
Such an account raises a host of questions: what precisely is the nature of
the moral good that has been taken from the victim? How can a moral good
be taken away from someone? In what sense (if at all) has the perpetrator
gained this good? How does punishment deny this good to the offender, and
how does this thereby make things right for the victim?

e. Sentencing
Because retributivism claims that punishment is justified as a deserved response to
wrongdoing, retributivist accounts should provide some guidance about what sentences
are deserved in particular cases. Typically, retributivists hold that sentences should be
no more severe than is deserved. This negative retributivist constraint on sentencing
corresponds with the negative retributivist constraint on punishment itself (namely,
that punishment is justified only of those who deserve it). By contrast, positive
retributivism holds that offenders sentences should be no less severe than they deserve.
Some scholars find this positive retributivism unappealing because it seems to preclude
the state from taking into account mercy or other considerations that might count in
favor of lenient sentences. In other words, some are more comfortable with
retributivisms setting a ceiling but not a floor on sentence severity. One question,
though, is whether (and if so, why) retributivists are justified in endorsing the negative

retributivist constraint on sentencing without also endorsing the positive retributivist

constraint.
Retributivists often discuss sentencing in terms of proportionality, where a
proportionate sentence is understood as one that is deserved (or at least, on some
accounts, not clearly undeserved). Sentences may be proportionate in two senses: first,
they may be proportionate (or disproportionate) relative to each other. This sense of
proportionality, called ordinal proportionality, holds that similarly serious offenses
should receive similarly severe punishments (like cases should be treated alike); that
more serious offenses should be punished more harshly than less serious offenses
(murder should be punished more harshly than shoplifting, for instance); and that
differences in sentence severity should reflect differences in relative seriousness of
offenses (because murder is much more serious than shoplifting, murder should carry a
much more severe sentence).
Some scholars have challenged the notion of ordinal proportionality constraints in
sentencing, both because offenders cannot neatly be distinguished into a manageable
number of desert-based groupsMichael Tonry calls this the illusion of like-situated
offenders (Tonry, 2011)and because individual offenders subjective experiences of
the same sentence may vary greatly. For example, someone who is young, physically
imposing, or has no children may have a much different experience of a 10-year prison
term from someone who is much older, physically frail, or must leave behind her
children to serve the sentence. Considerations such as these do not in themselves
demonstrate that the tenets of ordinal proportionality are false (that like cases should
not be treated alike, for instance, or that more serious violations should not receive
harsher sentences). Rather, these considerations raise challenges to our ability in
practice to implement a just sentencing scheme that reflects ordinal proportionality.
Even if sentences can be devised that satisfy ordinal proportionality, howeverin other
words, even if a sentencing scheme itself is internally proportionateparticular
sentences may fail to be proportionate if the entire sentencing scheme is too severe (or
lenient). For instance, a sentencing scheme in which even the least offenses were
punished with prison terms would appear disproportionate even if sentences in the
scheme were proportionate relative to each other. Thus theorists note a second sense of
proportionality: cardinal, or nonrelative, proportionality. Cardinal proportionality
considers whether sentences are commensurate with the crimes they punish. A prison

term for jaywalking would appear to violate cardinal proportionality, because such a
sentence strikes us as too severe given the offense, even if this sentence were
proportionate with other sentences in a sentencing schemethat is, even if it satisfied
ordinal proportionality. Thus cardinal proportionality concerns not the relation of
sentences to one another, but instead the relation of a sentence to the crime to which it
is a response. Put another way, even if an entire sentencing scheme is internally
(ordinally) proportionate, we need guidance in how to anchor the sentencing scheme to
the crimes themselves so that offenders in particular cases receive the sentences they
deserve.
In addition to addressing questions of deserved sentence severity, we would like
retributivism to provide some guidance about how to determine what mode, or form, of
punishment is appropriate in response to a given crime. Is prison time, community
service, capital punishment, probation, or something else the deserved form of
response, and why?
The implications of retributivism for sentencing will depend on the specific accounts
explanation of why punishment is said to be the deserved response to offending.
Those who appeal to intuitions that the guilty deserve to suffer, for instance, can
similarly appeal to intuitions that those who are guilty of more serious offenses deserve
to suffer more than those who are guilty of less serious offenses. As discussed, however,
we would like to know how much punishment is deserved in particular cases in
nonrelative terms, and also what form the suffering should take. One well-known
account of sentencing is provided by lex talionis (that is, an eye for an eye, a tooth for a
tooth). Immanuel Kant famously endorsed this principle: Accordingly, whatever
undeserved evil you inflict upon another within the people, that you inflict upon
yourself (Kant, 1797: 473). As critics have noted, though, not every crime appears to
have an obvious like-for-like responsewhat would lex talionis demand for the childless
kidnapper, for instance (Shafer-Landau, 2000: 193)? And even when a like-for-like
response is clearly indicated, it will not always be palatable (torturing the torturer, for
example).
We might assert instead that the sentence and the offense need not be alike in kind, but
that the sentence should impose an amount of suffering equal to the harm done by the
offender. Still, questions arise of how to make interpersonal comparisons of suffering.

And again, for the most heinous crimes, a principle of inflicting equal amounts of
suffering may recommend sentences that we would find troubling.
The fair play view holds that punishment functions to remove an unfair advantage
gained by an offender relative to members of society generally. Critics of this view often
object, however, that it provides insufficient or counterintuitive guidance about
sentencing. Put simply, there does not seem to be any advantage that an offender gains,
in proportion with the seriousness of her crime, relative to community members
generally. On one version of the view, the offender gains freedom from the burden of
self-constraint that others accept in complying with the particular law that the offender
violates. If so, then the sentence severity should be proportionate to the burden others
feel in complying with that law. But compliance with laws is often not a burden for most
citizens. Indeed, it is often less burdensome to comply with prohibitions on serious
offenses (murder, assault, and so forth) than it is to comply with prohibitions on lesser
crimes (tax evasion, jaywalking, and so forth), given that we are more often tempted to
commit the lesser crimes. But if the unfair advantage that punishment aims to remove is
freedom from the burden of self-constraint, and if self-constraint is often more
burdensome with lesser crimes, then these less serious crimes will often appear to merit
relatively more severe punishments. This is a violation of ordinal proportionality.
Similar problems arise for other versions of the fair play view. Suppose, for instance,
that the unfair advantage a criminal gains is not freedom from the burden of complying
with the particular law she violates, but rather freedom from complying with the rule of
law in general. This general compliance, Richard Dagger writes, is a genuine burden:
there are times for almost all of us when we would like to have the best of both worlds
that is, the freedom we enjoy under the rule of law plus freedom from the burden of
obeying laws (Dagger, 1993: 483). Critics have objected, however, that on this
conception of the unfair advantage all offenses become, for the purposes of punishment,
the same offense. Both the murderers and the tax cheats unfair advantage is freedom
from compliance with the rule of law generally. If the unfair advantage is the same,
however, then removing the advantage would seem to require equal sentences. Again,
such sentencing appears to violate ordinal proportionality.
For the censure view, questions arise about what form of punishment and what severity
will communicate the deserved message of condemnation in particular cases. On such a
view, the principles of ordinal proportionality appear to follow straightforwardly:

censure should reflect the seriousness of the wrongdoing, and so if punishment is the
vehicle of communicating censure, then sentences should reflect the appropriate relative
degree of censure for each case.
The censure view should provide guidance not only about how severely to punish crimes
relative to each other, but also how severely to punish in absolute terms, and also the
appropriate mode of punishment. To say that manslaughter should be censured more
severely than theft, for instance, does not actually tell us how severely to censure
manslaughter or theft, or with what form of punishment. Again, the challenge is in
determining how to anchor the sentencing scale to actual offenses. Should the least
serious offenses receive censure in the form of a small fine, a day in jail, or a year in jail?
Should the most serious offenses receive capital punishment, life imprisonment, or
some less severe sentence?
Similar questions arise for accounts that characterize punishment as a deserved
response to violations of trust, or as a deserved response to the incurrence of a moral
debt. What form and severity of punishment is appropriate to maintain conditions of
community trust in response to attempted kidnapping, or the theft of a valuable piece of
art? How severe must a sentence be to resolve the moral debt that is incurred when one
impersonates a police officer, or cheats on her taxes?
Indeed, questions about fixing deserved sentences in response to particular offenses
arise for retributivist accounts generally. Critics have charged that retributivism is
unable to provide adequate, nonarbitrary guidance about either the deserved severity or
deserved form of punishment in particular cases (see Shafer-Landau, 2000).
Retributivists are, of course, aware of such objections and have sought to meet them in
various ways. Nonetheless, questions about proportionate sentencing continue to be a
central challenge for retributivist accounts.

5. Alternative Accounts
In part as a response to objections commonly raised against consequentialist or
retributivist views, a number of theorists have sought to develop alternative accounts of
punishment.

a. Rights Forfeiture
At the outset, we said that the central question of punishments permissibility is why (if
at all) it is permissible to treat those who have committed criminal offenses in ways that
typically would be impermissible. For some theorists, this question is best cast in terms
of rights: why are the sorts of intended burdens characteristic of punishment, which
would constitute rights violations if imposed on those who have not been convicted of
criminal wrongdoing, not violations of the rights of those punished?
One way in which punishment would not violate the rights of offenders is if, in
committing the crime for which they are convicted, they forfeit the relevant right(s).
Because offenders forfeit their right not to be punished, the state has no corresponding
duty not to punish them. As W. D. Ross writes, the offender, by violating the life or
liberty or property of another, has lost his own right to have his life, liberty, or property
respected, so that the state has no prima facie duty to spare him, as it has a prima
facie duty to spare the innocent (1930: 60-61).
Notice that the forfeiture view itself does not imply any particular positive justification
of punishment; it merely purports to explain why punishing offenders does not violate
their rights. This is consistent with maintaining that the positive justification of
punishment is that it helps reduce crime, or conversely, that wrongdoers deserve to be
punished. Thus the forfeiture view does not provide a complete account of the
justification of punishment. Proponents, however, take this feature to be a virtue rather
than a weakness of the view.
The forfeiture claim raises a number of key questions: first, why does someone who
violates the law thereby forfeit the right not to be punished? For those who are gripped
by the dilemma of why punishing offenders does not violate their rights, the mere
answer that offenders forfeit their rights, without some deeper account of what this
forfeiture amounts to, may seem inadequate. Thus some theorists attempt to ground
their forfeiture claim in a more comprehensive moral or political theory (see, for
instance, Morris, 1991).
Second, what is the nature of the rights forfeited? Do offenders forfeit the same rights
they violate? If so, then this raises some of the same challenges as we saw with certain
forms of retributivism: what right is forfeited by a childless kidnapper, for example?

Alternatively, is the forfeited right simply the right not to be punished? If every offender
forfeits this same, general right, then on what basis can we distinguish what sentence is
permissible for different offenders? For example, if the burglar forfeits the same right as
the murderer, then what prevents us from imposing the same punishment in each case
(could two offenders forfeit the same right to different degrees, as some have
suggested)?
Third, how should we determine the duration of the forfeiture? Fourth, if an offender
forfeits her right against punishment, then why does the state maintain an exclusive
right to punish? Why are other individuals not permitted to punish?

b. Consent
Rights forfeiture theorists argue that punishment does not violate offenders rights
because offenders forfeit the relevant rights. Another way that punishment might be
said not to violate offenders rights is if offenders waive their rights. This is the central
claim of the consent view. Defended most notably by C. S. Nino (1983), the consent view
holds that when a person voluntarily commits a crime while knowing the consequences
of doing so, she effectively consents to these consequences. In doing so, she waives her
right not to be subject to punishment. This is not to say that she explicitly consents to
being punished, but rather that by her voluntary action she tacitly consents to be subject
to what she knows are the consequences.
Like the forfeiture view, the consent view does not supply a positive justification for
punishment. To say that a person consents to some treatment does not by itself provide
us with a reason to treat her that way. So the consent view, like the forfeiture view, is
compatible with consequentialist aims or with the claim that punishment is a deserved
response to offending.
One challenge for the consent view is that it does not seem to justify punishment of
offenders who do not know that their acts are subject to punishment. For someone to
have consented to be subject to certain consequences of an act, she must know of these
consequences. Whats more, even if an offender knows she is committing a punishable
act, she might not know the extent of the punishment to which she is subject. If so, then
it is not clear how she can be said to consent to her punishment. It is not clear, for
example, that a robber who knows that robbery is a punishable offense but does not

realize the severity of the punishment to which she will be subject thereby consents to
her sentence.
By contrast, other critics have charged that the consent view cannot rule out sentences
that most of us would find excessive. This is because a person who voluntarily commits
an action with knowledge of the legal consequences, whatever these consequences
happen to be, has consented to be subject to the consequences. As Larry Alexander has
put it: If the law imposes capital punishment for overparking, then one who voluntarily
overparks consents to be executed (Alexander, 1986).
Another difficulty for the consent view is that tacit consent typically can be overridden
by explicit denials of consent. Thus it would seem to follow that one who tacitly consents
to be subject to punishment could override this tacit consent by explicitly denying that
she consents. But of course, we do not think that an offender should be able to avoid
punishment by explicitly refusing to consent to it (Boonin, 2008).

c. Self-Defense
Another proposed justification of punishment conceives of punishment as a form of
societal self-defense. First consider self-defense in the interpersonal context: When an
assailant attacks me, he culpably creates a situation in which harm will occur: either
harm to me if I do not effectively defend myself or harm to him if I do. In such a
circumstance, I am justified in acting so that the harm falls on my attacker rather than
on me. Similarly, when an offender creates a situation in which either she or her victim
will be harmed, the state is permitted to use force to ensure that the harm falls on the
perpetrator rather than on the victim (Montague, 1995).
So far, this view appears to justify state intervention only to stop ongoing crimes or ward
off impending crimes. How does this view justify punishment as a response to past
crimes? Advocates of the view claim that the state is not only justified in intervening to
stop actual offenses; it is also permitted to threaten the use of force to deter such crimes.
For the threat to be credible and thus effective as a deterrent, however, the state will
need to follow through on the threat in cases in which offenders are not deterred. Thus
punishment of offenders is permissible.

Notice that although the self-defense account views punishment as a deterrent threat, it
is not a pure consequentialist account. Crucial to punishments permissibility on the
self-defense view is the claim that an offender has culpably created the circumstance in
which harm will fall either on the perpetrator or the victim. This backward-looking
element is missing from pure consequentialist accounts that cite punishments deterrent
effects in defending the practice.
Critics object that the analogy between self-defense and punishment breaks down in a
number of respects. First, many self-defense theorists argue that the logic of defensive
force permits the use of such force even against innocent threats. But we do not
typically believe that, by analogy, punishment of innocent people is permitted, even if
such punishment helped to maintain the credibility of a deterrent threat. Second, the
degree of force that is permitted to stop an actual attack may far exceed what we
intuitively believe would be permitted as punishment o

The Moral Permissibility of Punishment

The legal institution of punishment presents a distinctive moral challenge
because it involves a states infliction of intentionally harsh, or burdensome,
treatment on some of its memberstreatment that typically would be
considered morally impermissible. Most of us would agree, for instance, that
it is typically impermissible to imprison people, to force them to pay
monetary sanctions or engage in community service, or to execute them.

The moral challenge of punishment, then, is to establish what (if anything)

makes it permissible to subject those who have been convicted of crimes to
such treatment.
Traditionally, justifications of punishment have been either consequentialist
or retributivist. Consequentialist accounts contend that punishment is
justified as a means to securing some valuable endtypically crime
reduction, by deterring, incapacitating, or reforming offenders. Retributivism,
by contrast, holds that punishment is an intrinsically appropriate (because
deserved) response to criminal wrongdoing. Each type of account has been
roundly criticized, on a variety of grounds, by theorists in the other camp. In
an effort to break this impasse, scholars have attempted to find alternative
strategies that incorporate certain consequentialist or retributivist elements
but avoid the standard objections directed at each. Each of these accounts
has, in turn, met with criticism. Finally, abolitionists argue that none of these
defenses of punishment is satisfactory, and that the practice is morally
impermissible; the salient question for abolitionists, then, is how else (if at
all) society should respond to those forms of wrongdoing that we now punish.
This article first looks more closely at what punishment is; in particular, it
examines the distinctive features of punishment in virtue of which it stands
in need of justification. It then highlights various questions that a full
justification of punishment would need to answer. With these questions in
mind, the article considers the most prominent consequentialist, retributivist,
and hybrid attempts at establishing punishments moral permissibility.
Finally, it considers the abolitionist alternative.

Table of Contents
1. What is Punishment?
2. Various Questions
3. Consequentialist Accounts
1.

Deterrence
2.

Incapacitation

3.

Offender Reform

4.

Sentencing

5.

Objections and Responses

b. Retributivist Accounts
1.

Deserved Suffering
2.

Fair Play

3.

Censure

4.

Other Versions

5.

Sentencing

b. Alternative Accounts
1.

Rights Forfeiture
2.

Consent

3.

Self-Defense

4.

Moral Education

5.

Hybrid Approaches

b. Abolitionism
c. References and Further Reading
1. What is Punishment?

When we consider whether punishment is morally permissible, it is important

first to be clear about what it is that we are evaluating. Theorists disagree
about a precise definition of punishment; nevertheless, we can identify a
number of features that are commonly cited as elements of punishment.
First, it is generally accepted that punishment involves the infliction of
a burden. The state confines people in jails and prisons, where liberties such
as their freedom of movement and association, and their privacy, are heavily
restricted. It imposes often heavy monetary sanctions or forces people to
take part in community service work. It subjects people to periods of
probation during which their movements and activities are closely
supervised. In the most extreme cases, it executes people. Theorists
disagree on precisely how to characterize this feature of punishment. Some
describe punishment as essentially painful, or as involving the infliction of
suffering, harsh treatment, or harm. Others instead write of punishment as
involving the restriction of liberties. However we characterize the specific
nature of the burden, it is relatively uncontroversial that punishment in its
various forms is burdensome.

One might object that some prisoners could become accustomed to

incarceration and so not see it as a burden, or that the masochist might even
enjoy his corporal punishment. In response to supposed counterexamples
such as these, a defender of the burdensomeness feature of punishment
might argue that the comfortable prisoner and the masochist are still
punished insofar as they are treated in ways that are typically regarded as
burdensome by those on whom they are inflicted. Alternatively, one might
argue that a particular case of incarceration, corporal punishment, and so
forth, indeed does not count as punishment if the prisoner does not find it
burdensome (Boonin, 2008: 8-10). Whatever one makes of these attempted
counterexamples, it remains the case that punishment theorists by and large
agree that burdensomeness is an essential feature of punishment.
But punishment is not merely burdensome. A second widely accepted
feature of punishment is that it is intended to be burdensome. This feature
distinguishes punishment from other forms of treatment that may be
burdensome but are not intentionally so. Many people undoubtedly regard it
as burdensome to pay their taxes, for instance, but presumably most do not
regard this as a form of punishment. This is because although taxes may be
foreseeably burdensome, they are not intentionally so. That is, the state does
not levy taxes intending for them to be burdensome; rather, the intention is
to pay for roads, an education system, and other public goods. That paying
for these goods is burdensome to many taxpayers is incidental, and if there
were a way to collect sufficient revenue to pay for needed public goods
without this being a burden to taxpayers, then so much the better.
Punishment, however, is different. Punishment is intended to be
burdensome. If it were not burdensome, then it would not be doing its job.
For instance, as we will see below, some theorists contend that the aim of
punishment is to reduce crime by deterring potential criminals. But for the
threat of punishment to be the sort of thing likely to deter criminals, the
punishment itself must be burdensome. Other theorists (retributivists)
contend that wrongdoers deserve to suffer, and that punishment is justified
as the infliction of this deserved suffering. Here again, the burdensomeness
of punishment is not merely incidental, it is intended.

Of course, not all impositions of intended burdens count as punishment. A

third commonly accepted feature of punishment is that it is imposed on
someone guilty of an offense, as a response to that offense. Actually, there is
some disagreement about this point. To count as punishment, must it be
imposed on someone who is actually guilty of a crime? Or would it make
sense to talk of punishing an innocent person (either mistakenly or
intentionally)? Some scholars contend that punishment must be of a guilty
person. Susan Dimock writes, The innocent may be victimized by the penal
system, but they cannot be punished (Dimock, 1997: 42). By contrast, H.
L. A. Hart contends that we should acknowledge not only punishment of
actual offenders, but also cases (which he calls sub-standard or secondary)
of punishment of personswho neither are in fact nor supposed to be
offenders (see Hart, 1968: 5).
A fourth feature of punishment, widely acknowledged at least since the
publication of Joel Feinbergs seminal 1970 article The Expressive Function
of Punishment is that it serves to express condemnation, or censure, of the
offender for her offense. As Feinberg discusses, it is this condemning
element that distinguishes punishment from what he calls nonpunitive
penalties such as parking tickets, demotions, flunkings, and so forth.
(Feinberg, 1965: 398-401). As we will see below, some scholars have taken
this expression of censure to be central to the justification of punishment.
But whether or not it plays a role in the justification of the practice, this
expressive function is typically accepted as a distinctive feature of
punishment.
Finally, it is worth highlighting that this article focuses on the legal institution
of punishmentrather than, say, parents punishment of their children or
other interpersonal cases of punishment (but see Zaibert, 2006). Legal
theorists often assert as one of punishments features that it must be
imposed by a properly constituted legal authority (typically, the state). They
thereby aim to differentiate legal punishment from private vengeance or
vigilantism. This does not mean we must accept uncritically that the state is
the proper authority to impose punishment. Ideally, a full account of
punishment should provide a plausible answer to why (or if) the state has an
exclusive right to impose punishment.

These, then, are the most commonly cited features of punishment:

punishment involves the states imposition of intended burdensburdens
that express social condemnationon people (believed to be) guilty of
crimes, in response to those crimes. This is not intended as a precise
definition or a set of necessary and sufficient conditions for punishment.
Theorists may disagree about particular elements, or especially about how
exactly to flesh out the various elements. But this description is sufficient to
give us a sense of why punishment stands in need of justification: It involves
the states treating some of its members (imposing intentionally
burdensome, censuring sanctions) in ways that typically would be morally
impermissible.
2. Various Questions

When theorists ask whether punishment is justified, they typically assume a

backdrop in which the legal system administering punishment is legitimate,
and the criminal laws themselves are reasonably just. This is not to say that
they assume that all legal systems are legitimate and all criminal laws are
reasonably just in the actual world. Indeed, questions of political legitimacy
and criminalization are important topics that have received a great deal of
attention in their own right. But even in societies in which the legal system is
legitimate and the laws are reasonably just, a general question arises of
whether (and if so, why) it is permissible for the state to impose intended,
censuring burdens on those who violate the laws.
This general question of punishments moral permissibility actually
comprises a number of particular questions. A full normative account of
punishment should provide answers to each of these questions.
First, there is the question of punishments function, or purpose. Put simply,
what reason is there to want an institution of punishment? H. L. A. Hart
referred to this as punishments general justifying aim, although this term
may be misleading in two ways: on one hand, to say that the aim
is justifying implies that it is sufficient, by itself, to establish punishments
permissibility. As we will see, some scholars point out that more is needed to
justify punishment than merely citing its function, no matter how valuable.
On the other hand, talk of a justifying aim seems to privilege

consequentialist accounts, according to which punishment is justified as a

means to some socially valuable goal. But even for retributivist accounts,
according to which punishment is justified not as a means to some end but
rather as an intrinsically appropriate response to wrongdoing, we still need
an explanation of why such a response is important enough to warrant the
states institution of punishment. A first question, then, is what sufficiently
important function punishment serves.
Even if we establish some sufficiently valuable function of punishment, this
may not be enough to justify the practice. Some scholars contend that a
crucial question is whether punishment violates the moral rights of those
punished. If punishing offenders violates their rights, then it may be morally
impermissible even if it serves some important function (Simmons, 1991;
Wellman, 2009). What we need, according to this view, is an account of why,
in principle, the practice of imposing intended burdens on people in the ways
characteristic of punishment does not violate their moral rights.
In addition to justifying the practice of punishment in general, a complete
account of punishment should also provide guidance in determining how to
punish in particular cases. Even if the institution of punishment is morally
permissible, a particular sentence may be impermissible if it is excessively
harsh (or on some accounts, if it is too lenient). What principles and
considerations should guide assessments of how severely to punish?
Relatedly, although this point has received less attention, we should ask not
only about the appropriate severity of punishment but also about the proper
mode of punishment. We may critique certain sentences not in virtue of their
severity but because we believe the form of punishment (incarceration,
capital punishment, and so forth) is in some sense inappropriate (Reiman,
1985; Moskos, 2011). What considerations, then, should guide assessments
of whether imprisonment, fines, community service, probation, capital
punishment, or some other form of punishment is the appropriate response
to instances of criminal wrongdoing?
Finally, as mentioned, it is important to ask about the states role as the
agent of punishment. Why is it the states right to impose punishment (if

indeed it is)? Furthermore, what gives the state theexclusive right to punish
(Wellman, 2009)? Why may victims not inflict punishment on their assailants
(or hire someone to inflict the punishment)? Another question related to the
proper agent of punishmenta question that has become increasingly
salient in the decades following the Nuremberg trialsis when (if ever) the
international community, rather than a particular state, can be the proper
agent of punishment. What sorts of crime, and which criminals, are properly
accountable to the institutions of international criminal law rather than (or
perhaps in addition) to the domestic legal systems of particular states?
As we will see, various accounts of punishment focus on different questions.
Also, some accounts seek to answer each of these questions by appealing to
the same moral principles or considerations, whereas others appeal to
different considerations in answering the different questions.
3. Consequentialist Accounts

Consequentialism holds that the rightness or wrongness of actionsor rules

for action, or (relevant to our context) institutionsis determined solely by
their consequences. Thus consequentialist accounts of punishment defend
the practice as instrumentally valuable: the consequences of maintaining an
institution of legal punishment, according to this view, are better than the
consequences of not having such an institution. For many consequentialists,
the burden of punishment itself is seen as a negative consequencean
evil, as Jeremy Bentham called it (Bentham, 1789: 158). Thus for
punishment to be justified, it must be the case that it brings about other,
sufficiently valuable consequences to outweigh its onerousness for the
person on whom it is inflicted. Typically, punishment is defended as a
necessary means to the socially valuable end of crime reduction, through
deterrence, incapacitation, or offender reform.

a. Deterrence
Deterrence accounts contend that the threat of punishment serves as a
disincentive for potential criminals. On such accounts, for the threat of
punishment to be effective as a deterrent, it must be credibleit must have
teeth, so to speakand thus the legal system must follow through on the

threat and impose punishment on those who violate laws. Theorists have
distinguished two potential audiences for the deterrent threat: first, the
threat of punishment might serve to dissuade members of the public
generally from committing crimes that they might otherwise have
committed. This is called general deterrence. Second, for those who do
commit crimes and are subjected to punishment, the threat of future
punishment (namely, the prospect of having to experience prison again, or
pay further fines, and so forth) might provide a disincentive to reoffending.
This is typically referred to as specific (or special) deterrence.

b. Incapacitation
Punishment might also help to reduce crime by incapacitating criminals.
Unlike deterrence, incapacitation does not operate by dissuading potential
offenders. Incapacitation instead aims to remove dangerous people from
situations in which they could commit crimes. Imprisoning someone in a
solitary confinement unit, for instance, may or may not convince her not to
commit crimes in the future; but while she is locked up, she will be unable to
commit (most) crimes.

c. Offender Reform
A third way in which punishment might help to reduce crime is by
encouraging or facilitating offender reform. The aim of reform is like that of
specific deterrence in one respect: both seek to induce a change in the
offenders behavior. That is, the aim for both is that she should choose not to
reoffend. In this respect, both reform and specific deterrence differ from
incapacitation, which is concerned with restricting rather than influencing
offenders choices. But reform differs from specific deterrence in terms of the
ways in which each seeks to induce different choices. Punishment aimed at
specific deterrence provides prudential reasons: we impose onerous
treatment on an offender in hopes that her aversion to undergoing such
treatment again will convince her not to reoffend. Punishment with the aim
of offender reform, by contrast, aims to reshape offenders moral motives
and dispositions.

d. Sentencing
Each of these aimsdeterrence, incapacitation, and reformwill have
distinct implications with respect to sentencing. Punishment aimed at
reducing crime through deterrence would in general need to be severe
enough to provide members of the public with a significant incentive not to
offend, or to provide offenders with an incentive not to reoffend. Also, as
Bentham explained, the severity of sentences should reflect the relative
seriousness of the crimes punished (Bentham, 1789: 168). More serious
crimes should receive more severe punishments than do less serious crimes,
so that prospective offenders, if they are going to commit one crime or the
other, will have an incentive to choose the less serious crime.
For punishment aimed at reducing crime through incapacitation, sentences
should be restrictive enough that dangerous offenders will be unable to
victimize others (so, for instance, prison appears generally preferable to fines
as a form of incapacitative punishment). In terms of duration, incapacitative
sentences should last as long as the offender poses a genuine threat.
Similarly, sentences aimed at reducing crime through offender reform should
be tailored, in terms of the form, severity, and duration of punishment, in
whatever ways are determined to be most conducive to this aim.
Finally, insofar as punishment itself is considered to be, in Benthams words,
an evil, the consequentialist is committed to the view that sentences
should be no more severe than is necessary to accomplish their aim. Thus
whether she endorses deterrence, incapacitation, reform, or some other aim
(or a combination of these), the consequentialist should also endorse a
parsimony constraint on sentence severity (Tonry, 2011). After all, to impose
sentences that are more severe than is necessary to accomplish
punishments aim(s) would appear to be an infliction of gratuitous suffering
and so, from a consequentialist perspective, unjustified.

e. Objections and Responses

Typical consequentialist accounts of punishment contend that the practice is
justified because it produces, on balance, positive consequences by helping

to reduce crime, either through deterrence, incapacitation, or offender

reform. Critics have objected to such consequentialist accounts on a number
of grounds.
First, some have objected to deterrence accounts on grounds that
punishment does not actually deter potential offenders. A key worry is that
often (perhaps typically) those who commit crimes act impulsively or
irrationally, rather than as efficient calculators of expected utility, and so
they are not responsive to the threat of punishment. The question of whether
punishment deters is an empirical one, and criminological studies on this
question have come to different conclusions. In general, evidence seems to
indicate that punishment does have some deterrent effect, but that the
certainty of apprehension plays a greater deterrent role than does the
severity of punishment (Nagin, 2013).
A similar line of objection has been raised against reform-based accounts of
punishment. Criminological research in the 1970s led many scholars and
practitioners to conclude that punishment did not, indeed could not, promote
offender reform (the mantra nothing works was for many years ubiquitous
in these discussions). More recent criminological work, however, has
generated somewhat more optimism about the prospects for offender reform
(Cullen, 2013).
Whereas critics have questioned whether punishment deters or facilitates
offender reform, there is little doubt that punishmentespecially
incarcerationincapacitates (prisoners may still have opportunities to
commit crimes, but their opportunities are at least significantly limited.)
Critics have raised questions, however, about the link between incapacitation
and crime reduction. For punishment to be justified on incapacitative
grounds, after all, it would need to be the case not only that punishment in
fact incapacitates, but that in so doing it helps to reduce crime. At least in
some cases, there is reason to doubt whether the link between
incapacitation and crime reduction holds. Most notably, locking up drug
dealers or gang members does not appear to decrease drug- or gang-related
crimes, because the incapacitated person is quickly and easily replaced by
someone else (Tonry, 2006: 31-32).

Even if we accept, for arguments sake, that punishment contributes to crime

reduction, it still may not be justified on consequentialist grounds if it also
generates costs that outweigh its benefits. The costs of punishment are not
limited to the suffering or other burdens inflicted on offenders, although
these burdens do matter from a consequentialist perspective. Scholars have
also highlighted burdens associated with certain forms of punishmentin
particular, incarcerationfor offenders families and communities (Mauer
and Chesney-Lind, 2002). These costs matter in consequentialist
calculations. In addition, we must consider the financial costs of maintaining
an institution of criminal punishment. In 2012, the Vera Institute of Justice
released a study of 40 U.S. states that found that the total taxpayer cost of
prisons in these states was $39 billion. Thus defenders of punishment on
consequentialist grounds must show not only that punishment is beneficial,
but also that its benefits are significant enough to outweigh its costs to
offenders and to society generally.
Furthermore, even if punishments benefits outweigh its costs,
consequentialists must make the case that these benefits cannot be
achieved through some other, less burdensome response to crime. If there
are alternatives to punishment that are equally effective in reducing crime
but are less costly overall, then from a consequentialist perspective, these
alternatives would be preferable (Boonin, 2008: 53, 264-67).
Suppose, however, that the benefits of punishment outweigh its harms and
also that there are no alternatives to punishment that generate, on balance,
better overall consequences. In this case, punishment would be justified from
a consequentialist perspective. Many theorists, however, do not endorse
consequentialism. Indeed, the most prominent philosophical objections to
consequentialist accounts of punishment take aim specifically at supposed
deficiencies of consequentialism itself.
Perhaps the most common objection to consequentialist accounts is that
they are unable to provide principled grounds for ruling out punishment of
the innocent. If there were ever a situation in which punishing an innocent
person would promote the best consequences, then consequentialism
appears committed to doing so. H. J. McCloskey imagines a case in which, in

the wake of a heinous crime, a small-town sheriff must decide whether to

frame and punish a person whom the townspeople believe to be guilty but
the sheriff knows is innocent if doing so is the only way to prevent rioting by
the townspeople (McCloskey, 1957: 468-69). If punishing the innocent person
defuses the residents hostilities and prevents the riotsand thereby
produces better overall consequences than continuing to search for the
actual criminalthen it appears that the consequentialist is committed to
punishing the innocent person. But knowingly punishing an innocent person
strikes most of us as deeply unjust.
Consequentialists have responded to this objection in various ways. Some
contend that what McCloskey describes is not actually punishment, because
punishment, by definition, is a response to those guilty of crimes (or at least
believed to be guilty, whereas in McCloskeys example, the sheriff knows the
person to be innocent). H. L. A. Hart refers to this response as the
definitional stop and he suggests it is unhelpful because it seeks to define
away the interesting normative questions. Setting terminology aside, the
relevant questions are whether and why it is permissible to impose intended,
condemnatory burdens on those (believed to be) guilty of crimes. The
consequentialists response is that doing so produces the best
consequences, but then it seems that the consequentialist should be
committed to imposing such burdens on those not (believed to be) guilty of
crimes when doing so produces the best consequences. Such a practice
would strike many as morally wrong, however. Thus the objection arises for
consequentialists regardless of definitions.
Others have responded to the objection that consequentialism would allow
for punishing the innocent by suggesting that scenarios such as McCloskey
suggests are so far-fetched that they are unlikely to occur in the real world.
In actual cases, punishing the innocent will rarely, if ever, produce the best
consequences. For instance, some contend that the sheriff in the example
would likely be found out, and as a result the public would lose its trust in law
enforcement officials; the long-term consequences, therefore, would be
worse than if the sheriff had not punished the innocent person. As critics
have pointed out, however, this response only shows that punishing the
innocent will usually be ruled out by consequentialism. There might still be

cases, albeit rare, in which punishing the innocent would generate the best
consequences (maybe the sheriff is adept at covering up his act). At best,
then, consequentialism seems only able to ground a contingent prohibition
on punishing the innocent. Some consequentialists have accepted this
implication, albeit reluctantly (see Smart, 1973: 69-73).
A similar objection to consequentialist accounts is that they cannot provide a
principled basis for the widely held intuition that punishment should be no
more severe than an offender deserves (where desert is the product of the
seriousness of the offense and the offenders culpability). On this view, it is
morally wrong to subject those guilty of relatively minor crimes to harsh
punishment; such punishment would be excessive. For consequentialist
accounts, though, it appears that excessively harsh sentences would be
permitted (indeed, required) if they produced the best overall consequences.
Jeremy Bentham contended that consequentialism does have the resources
to ground relative proportionality in sentencingthat is, lesser offenses
should receive less severe sentences than more serious offenses receive. His
reasoning was that if sentences for minor offenses were as harsh as for more
serious offenses, potential offenders would have no incentive to commit the
lesser offense rather than the more serious one (Bentham, 1789: 168). If
Bentham is right, then there is a consequentialist basis for punishing
shoplifters, for instance, less harshly than armed robbers. But this does not
rule out punishing shoplifters harshly (more harshly than most of us would
think justified) and punishing armed robbers even more harshly; again, a
consequentialist would seem committed to such a sentencing scheme if it
promoted the best overall consequences.
Defenders of consequentialist sentencing have another response available,
namely that excessively harsh sentences do not, in practice, produce the
best consequences. For instance, criminological research suggests a) that
stiffer sentences do not produce significant deterrent effects (it is primarily
the certainty of punishment rather than its severity that deters); b) that
extremely long prison terms are not justified on incapacitative grounds (for
one reason, most offenders age out of criminal behavior anyway by their
30s or 40s); and c) that extremely harsh sentences may, on balance, have

criminogenic effects (that is, they may make people more likely to reoffend).
This sort of response, of course, makes the prohibition of disproportionate
punishment a contingent matter; in other words, if extremely harsh
sentences did help to reduce crime and this produced, on balance, the best
overall consequences, then consequentialism would appear to endorse such
sentences. Critics thus charge that consequentialist accounts are
unappealing insofar as they are unable to ground more than a contingent
prohibition on disproportionately harsh punishment.
Even if we prohibit punishment of the innocent or disproportionate
punishment of the guilty, a third, Kantian objection holds that
consequentialist punishment is not properly responsive to the person being
punished. According to this objection, to punish offenders as a means to
securing some valuable social end (namely, crime reduction) is to use them
as mere means, rather than respecting them as ends in themselves (Kant,
1797: 473; Murphy, 1973).
In response to this objection, some scholars have contended that although
consequentialists regard punishment as a means to an end, punishment
does not treat offenders as mere means to this end. If we limit punishment to
those who have been found guilty of crimes, then this treatment is arguably
responsive to their choices and does not use them as mere means. Kant
himself suggested that as long as we reserve punishment only for those
found guilty of crimes, then it is permissible to punish with an eye toward
potential benefits (Kant, 1797: 473).
A more recent objection to consequentialist systems of punishment,
developed by R. A. Duff (1986, 2001), charges that consequentialist systems
of punishment, with their focus on crime reduction, treat offenders as
dangerous outsidersas the they whom we, the law-abiding members
of society, must threaten, incapacitate, or remold to ensure our safety. Such
a conception of the criminal law is inappropriately exclusionary, Duff claims.
The criminal law, and the institution of punishment, in a liberal polity should
treat offenders inclusively, as (still) members of the community who despite
having violated its values could, and should, nevertheless (re)commit to
these values.

In response, one might object that systems of punishment aimed at crime

reduction need not be exclusionary in the way Duff suggests. In particular,
punishment that aims to deter crime might be said to treat all community
members equally, namely as potential offenders. For those who have not
committed crimes, deterrent punishment regards them as potential offenders
and aims to provide an incentive not to offend (that is, general deterrence).
For those who have committed crimes, deterrent punishment similarly
regards them as potential (re)offenders and aims to provide an incentive not
to (re)offend (that is, specific deterrence). In this way, punishment with a
deterrent aim might be said to speak to all community members in the same
terms, and thus not to be objectionably exclusionary.
4. Retributivist Accounts

As we have seen, consequentialist accounts of punishment are essentially

forward-lookingpunishment is said to be justified in virtue of the
consequences it helps to produce. A different sort of account regards
punishment as justified not because of what it brings about, but instead
because it is an intrinsically appropriate response to crime. Accounts of the
second sort have traditionally been described as retributivist. In general, we
can say that retributivism views punishment as justified because it
is deserved, although particular accounts differ about what exactly this
means.
Theorists have distinguished two varieties of retributivism: positive
retributivism and negative retributivism. Positive retributivism is typically
characterized as the view that an offenders desert provides a positive
justifying reason for punishment; in other words, the state should punish
those who are found guilty of criminal wrongdoing because they deserve it.
Negative retributivism, by contrast, provides a constraint on punishment:
punishment is justified only of those who deserve it. Because negative
retributivism provides only a constraint on punishment, not a positive reason
to punish, the negative retributive constraint has featured prominently in
attempts at mixed accounts of punishment; such accounts allow punishment
for consequentialist aims as long as the punishment is only of those who
deserve it. On the other hand, because negative retributivism does not

provide a positive justifying reason to punish, some scholars argue that it

does not properly count as retributivism at all.
The distinction between retributivism and consequentialism is not always a
neat one. Notice that one might endorse the claim that punishment is a
deserved response to wrongdoing and then further assert that it is a valuable
state of affairs when wrongdoers get the punishment they deservea state
of affairs that therefore should be promoted. On this type of account,
retribution itself essentially becomes the consequentialist aim of punishment
(Moore, 1903; Zaibert, 2006). Nevertheless, in keeping with general practice,
this article will treat retributivism as distinct from, and in competition with,
consequentialist accounts.

a. Deserved Suffering
One common version of retributivism contends simply that wrongdoers
deserve to suffer in proportion to their wrongdoing. Often this claim is made
by way of appeal to intuitions about particular, usually heinous crimes: surely
the unrepentant war criminal, for example, who has tortured and murdered
many innocent people, deserves to suffer for what he has done. Proponents
argue that retributivism is justified because it best accounts for our intuitions
about particular cases such as these (Moore, 1987; Kleinig, 1973).
Justifying retributivism requires more, of course, than merely appealing to
common intuitions about such cases. After all, even if many (even most)
people do feel, in hearing reports of terrible crimes, that the perpetrators
deserve to suffer, not everyone feels this way. And even those who do have
such intuitions may not feel entirely comfortable with them. What we would
like to know is whether the intuitions themselves are justified, or whether, for
instance, they amount to an unhealthy desire for vengeance. Critics contend
that those who rely on our intuitions about particular cases as evidence that
retributivism is justified fail to provide the needed explanation of why the
intuitions are justified.
There are other questions for such a view: does any sort of moral wrongdoing
deserve to be met with suffering, or only some cases of wrongdoing? Which

ones? And why is meting out deserved suffering for wrongdoing properly the
concern of the state?

b. Fair Play
Another prominent type of retributivist account begins with a conception of
society as a cooperative venture in which each member benefits when there
is general compliance with the rules governing the venture. Because each of
us benefits when everyone else plays by the rules, fairness dictates that we
each have an obligation to reciprocate by playing by the rules, too. A
criminal, like other members of society, benefits from general compliance
with laws, but she fails to reciprocate by complying with the laws herself. She
essentially becomes a free rider, because she counts on others to play by the
rules that she violates. By failing to restrain herself appropriately, she gains
an unfair advantage over others in society. The justification of punishment is
that it corrects this unfair advantage by inflicting burdens on the offender
proportionate to the benefit she gained by committing her crime (Morris,
1968).
On the fair play view, then, punishment is justified as a deserved response to
an unfair advantage taken against members of society generally. Such an
account offers a relatively straightforward answer to the question of why
punishment is the states business. The state has an interest in assuring
those who accept the burdens of compliance with the law that they will not
be at a disadvantage to those who would free-ride on the system.
Critics of the fair play view have argued that it provides a counterintuitive
conception of the crime to which punishment responds. It seems strange, for
instance, to think of the wrong perpetrated by, say, a rapist as a sort of freeriding wrong against society in general, rather than an egregious wrong
perpetrated against the victim in particular. In response to this charge,
Dagger (1993) argues that crimes may be wrong in both senses: they may
wrong particular victims in various ways, but they are also in every case
wrongs in the sense of free riding on society generally.

c. Censure

Another influential version of retributivism begins with the claim, discussed

earlier, that one of punishments distinctive features is that it communicates
censure, or condemnation, of the offender for her offense. This retributivist
account, developed most notably by R. A. Duff (1986, 2001), takes the
censuring feature as the key to establishing punishments moral
permissibility. Offenders deserve to be censured for what they have done,
and punishment is justified because it delivers this censuring message.
Duff understands crimes as public wrongs, as violations of important public
values. It follows on this account that the state is the appropriate agent of
punishment; the state properly calls offenders to account for their violations
of the political communitys shared values.
Censuring involves, in part, urging an offender to think about the wrong she
has done, to repent and (re)commit herself to the values that she has
violated. Thus it follows from censure accounts such as Duffs that offender
self-reform is an aim of punishment. But notice the crucial distinction
between this sort of account and the variety of consequentialist account that
aims at offender reform. Although offender reform is an aim of punishment
on the censure account, it is not ajustifying aim. In other words, on the
censure view, punishment is not justified insofar as it tends to promote
offender reform. Rather, punishment is justified because it communicates
deserved censure. Part of what it means to censure, however, is to urge
wrongdoers to repent and reform.
A common critique of the censure view asks why punishmentthat is, the
imposition of intended burdensis the proper way to censure wrongdoers. It
seems that the polity could communicate messages of censure to offenders
without imposing intended burdens; for example, it could issue a public
proclamation condemning the crime and blaming the offender. Why, then, is
the hard treatment characteristic of punishment an appropriate vehicle for
conveying such messages? One type of response, offered by Duff and others
(see also Falls, 1987), holds that hard treatment is needed to convey
adequately the politys condemnation of crimes. Nonpunitive censure
blaming without imposing intended hard treatmentwould fail to
communicate the seriousness of the wrongdoing.

Also, on Duffs account, hard treatment can function to induce in offenders

the sort of moral reflection that may lead to repentance, reform, and
reconciliation (with their victims and the community more generally). Some
have objected, however, that such an account implies too intrusive a role for
the state. It is not a proper function of the state, critics charge, to seek to
induce repentance and moral reform in offenders. Thus even some scholars
who agree that punishment is justified as a form of censure nevertheless
disagree about the role of the hard treatment element. For Andrew von
Hirsch (1993), for instance, the intended burdens characteristic of
punishment act as a sort of prudential supplement: punishment, as censure,
serves to remind offenders (and community members) of the moral reasons
to comply with the law. Punishment, as hard treatment, also provides a
prudential threat as a sort of supplement for those of us for whom the moral
message is not sufficient. One worry with such an account, however, is
whether the prudential threat will tend to drown out the moral message.

d. Other Versions
Alternative versions of retributivism have been offered. Some scholars, for
instance, argue that those who commit crimes violate the trust of their fellow
community members. Trust, on this account, is an essential feature of a
healthy community. Offenders undermine this trust when they victimize
others. In such cases, punishment is a deserved response to such violations
and an appropriate way to help maintain (or restore) the conditions of trust
among community members (see Dimock, 1997). Advocates of this trustbased variety of retributivism must explain which violations of trust rise to
the level that warrants criminalization, so that violators should be subject to
punishment. Also, we might question whether such accounts are purely
retributivist after all: if punishment is justified at least in part as a means of
helping to maintain conditions of trust in a community, then this appears to
be a consequentialist rationale. On the other hand, if punishment is justified
not for what it helps to bring about but rather as an intrinsically appropriate
(because deserved) response to violations of trust, then we need an
explanation of why such violations deserve punishment, perhaps as opposed
to some other form of response.

Another form of retributivism holds that offenders incur a moral debt to their
victims, and so they deserve punishment as a way to repay this debt
(McDermott, 2001). This moral debt is distinct from the material debt that an
offender may incur. In other words, a person who robs from another person
incurs a material debt equal to the value of whatever was stolen, but she
also incurs a moral debt for violating the victims rights. The offender takes
not only a material good from the victim but also a moral good. Repayment
of material goods does not settle this moral debt, and so punishment is
needed to fill this role. As Daniel McDermott characterizes it, punishment
serves to deny the ill-gotten moral good to the perpetrator (McDermott,
2001: 424).
Such an account raises a host of questions: what precisely is the nature of
the moral good that has been taken from the victim? How can a moral good
be taken away from someone? In what sense (if at all) has the perpetrator
gained this good? How does punishment deny this good to the offender, and
how does this thereby make things right for the victim?

e. Sentencing
Because retributivism claims that punishment is justified as a deserved
response to wrongdoing, retributivist accounts should provide some guidance
about what sentences are deserved in particular cases. Typically,
retributivists hold that sentences should be no more severe than is deserved.
This negative retributivist constraint on sentencing corresponds with the
negative retributivist constraint on punishment itself (namely, that
punishment is justified only of those who deserve it). By contrast, positive
retributivism holds that offenders sentences should be no less severe than
they deserve. Some scholars find this positive retributivism unappealing
because it seems to preclude the state from taking into account mercy or
other considerations that might count in favor of lenient sentences. In other
words, some are more comfortable with retributivisms setting a ceiling but
not a floor on sentence severity. One question, though, is whether (and if so,
why) retributivists are justified in endorsing the negative retributivist
constraint on sentencing without also endorsing the positive retributivist
constraint.

Retributivists often discuss sentencing in terms of proportionality, where a

proportionate sentence is understood as one that is deserved (or at least, on
some accounts, not clearly undeserved). Sentences may be proportionate in
two senses: first, they may be proportionate (or disproportionate) relative to
each other. This sense of proportionality, called ordinal proportionality, holds
that similarly serious offenses should receive similarly severe punishments
(like cases should be treated alike); that more serious offenses should be
punished more harshly than less serious offenses (murder should be
punished more harshly than shoplifting, for instance); and that differences in
sentence severity should reflect differences in relative seriousness of
offenses (because murder is much more serious than shoplifting, murder
should carry a much more severe sentence).
Some scholars have challenged the notion of ordinal proportionality
constraints in sentencing, both because offenders cannot neatly be
distinguished into a manageable number of desert-based groupsMichael
Tonry calls this the illusion of like-situated offenders (Tonry, 2011)and
because individual offenders subjective experiences of the same sentence
may vary greatly. For example, someone who is young, physically imposing,
or has no children may have a much different experience of a 10-year prison
term from someone who is much older, physically frail, or must leave behind
her children to serve the sentence. Considerations such as these do not in
themselves demonstrate that the tenets of ordinal proportionality are false
(that like cases should not be treated alike, for instance, or that more serious
violations should not receive harsher sentences). Rather, these
considerations raise challenges to our ability in practice to implement a just
sentencing scheme that reflects ordinal proportionality.
Even if sentences can be devised that satisfy ordinal proportionality,
howeverin other words, even if a sentencing scheme itself is internally
proportionateparticular sentences may fail to be proportionate if the entire
sentencing scheme is too severe (or lenient). For instance, a sentencing
scheme in which even the least offenses were punished with prison terms
would appear disproportionate even if sentences in the scheme were
proportionate relative to each other. Thus theorists note a second sense of
proportionality:
cardinal,
or
nonrelative,
proportionality.
Cardinal

proportionality considers whether sentences are commensurate with the

crimes they punish. A prison term for jaywalking would appear to violate
cardinal proportionality, because such a sentence strikes us as too severe
given the offense, even if this sentence were proportionate with other
sentences in a sentencing schemethat is, even if it satisfied ordinal
proportionality. Thus cardinal proportionality concerns not the relation of
sentences to one another, but instead the relation of a sentence to the crime
to which it is a response. Put another way, even if an entire sentencing
scheme is internally (ordinally) proportionate, we need guidance in how to
anchor the sentencing scheme to the crimes themselves so that offenders in
particular cases receive the sentences they deserve.
In addition to addressing questions of deserved sentence severity, we would
like retributivism to provide some guidance about how to determine what
mode, or form, of punishment is appropriate in response to a given crime. Is
prison time, community service, capital punishment, probation, or something
else the deserved form of response, and why?
The implications of retributivism for sentencing will depend on the specific
accounts explanation of why punishment is said to be the deserved
response to offending.
Those who appeal to intuitions that the guilty deserve to suffer, for instance,
can similarly appeal to intuitions that those who are guilty of more serious
offenses deserve to suffer more than those who are guilty of less serious
offenses. As discussed, however, we would like to know how much
punishment is deserved in particular cases in nonrelative terms, and also
what form the suffering should take. One well-known account of sentencing
is provided by lex talionis (that is, an eye for an eye, a tooth for a tooth).
Immanuel Kant famously endorsed this principle: Accordingly, whatever
undeserved evil you inflict upon another within the people, that you inflict
upon yourself (Kant, 1797: 473). As critics have noted, though, not every
crime appears to have an obvious like-for-like responsewhat would lex
talionis demand for the childless kidnapper, for instance (Shafer-Landau,
2000: 193)? And even when a like-for-like response is clearly indicated, it will
not always be palatable (torturing the torturer, for example).

We might assert instead that the sentence and the offense need not be alike
in kind, but that the sentence should impose an amount of suffering equal to
the harm done by the offender. Still, questions arise of how to make
interpersonal comparisons of suffering. And again, for the most heinous
crimes, a principle of inflicting equal amounts of suffering may recommend
sentences that we would find troubling.
The fair play view holds that punishment functions to remove an unfair
advantage gained by an offender relative to members of society generally.
Critics of this view often object, however, that it provides insufficient or
counterintuitive guidance about sentencing. Put simply, there does not seem
to be any advantage that an offender gains, in proportion with the
seriousness of her crime, relative to community members generally. On one
version of the view, the offender gains freedom from the burden of selfconstraint that others accept in complying with the particular law that the
offender violates. If so, then the sentence severity should be proportionate to
the burden others feel in complying with that law. But compliance with laws
is often not a burden for most citizens. Indeed, it is often less burdensome to
comply with prohibitions on serious offenses (murder, assault, and so forth)
than it is to comply with prohibitions on lesser crimes (tax evasion,
jaywalking, and so forth), given that we are more often tempted to commit
the lesser crimes. But if the unfair advantage that punishment aims to
remove is freedom from the burden of self-constraint, and if self-constraint is
often more burdensome with lesser crimes, then these less serious crimes
will often appear to merit relatively more severe punishments. This is a
violation of ordinal proportionality.
Similar problems arise for other versions of the fair play view. Suppose, for
instance, that the unfair advantage a criminal gains is not freedom from the
burden of complying with the particular law she violates, but rather freedom
from complying with the rule of law in general. This general compliance,
Richard Dagger writes, is a genuine burden: there are times for almost all of
us when we would like to have the best of both worldsthat is, the freedom
we enjoy under the rule of law plus freedom from the burden of obeying
laws (Dagger, 1993: 483). Critics have objected, however, that on this
conception of the unfair advantage all offenses become, for the purposes of

punishment, the same offense. Both the murderers and the tax cheats
unfair advantage is freedom from compliance with the rule of law generally.
If the unfair advantage is the same, however, then removing the advantage
would seem to require equal sentences. Again, such sentencing appears to
violate ordinal proportionality.
For the censure view, questions arise about what form of punishment and
what severity will communicate the deserved message of condemnation in
particular cases. On such a view, the principles of ordinal proportionality
appear to follow straightforwardly: censure should reflect the seriousness of
the wrongdoing, and so if punishment is the vehicle of communicating
censure, then sentences should reflect the appropriate relative degree of
censure for each case.
The censure view should provide guidance not only about how severely to
punish crimes relative to each other, but also how severely to punish in
absolute terms, and also the appropriate mode of punishment. To say that
manslaughter should be censured more severely than theft, for instance,
does not actually tell us how severely to censure manslaughter or theft, or
with what form of punishment. Again, the challenge is in determining how to
anchor the sentencing scale to actual offenses. Should the least serious
offenses receive censure in the form of a small fine, a day in jail, or a year in
jail? Should the most serious offenses receive capital punishment, life
imprisonment, or some less severe sentence?
Similar questions arise for accounts that characterize punishment as a
deserved response to violations of trust, or as a deserved response to the
incurrence of a moral debt. What form and severity of punishment is
appropriate to maintain conditions of community trust in response to
attempted kidnapping, or the theft of a valuable piece of art? How severe
must a sentence be to resolve the moral debt that is incurred when one
impersonates a police officer, or cheats on her taxes?
Indeed, questions about fixing deserved sentences in response to particular
offenses arise for retributivist accounts generally. Critics have charged that
retributivism is unable to provide adequate, nonarbitrary guidance about

either the deserved severity or deserved form of punishment in particular

cases (see Shafer-Landau, 2000).
Retributivists are, of course, aware of such objections and have sought to
meet them in various ways. Nonetheless, questions about proportionate
sentencing continue to be a central challenge for retributivist accounts.
5. Alternative Accounts

In part as a response to objections commonly raised against consequentialist

or retributivist views, a number of theorists have sought to develop
alternative accounts of punishment.

a. Rights Forfeiture
At the outset, we said that the central question of punishments
permissibility is why (if at all) it is permissible to treat those who have
committed criminal offenses in ways that typically would be impermissible.
For some theorists, this question is best cast in terms of rights: why are the
sorts of intended burdens characteristic of punishment, which would
constitute rights violations if imposed on those who have not been convicted
of criminal wrongdoing, not violations of the rights of those punished?
One way in which punishment would not violate the rights of offenders is if,
in committing the crime for which they are convicted, they forfeit the
relevant right(s). Because offenders forfeit their right not to be punished, the
state has no corresponding duty not to punish them. As W. D. Ross writes,
the offender, by violating the life or liberty or property of another, has lost
his own right to have his life, liberty, or property respected, so that the state
has no prima facie duty to spare him, as it has a prima facie duty to spare
the innocent (1930: 60-61).
Notice that the forfeiture view itself does not imply any particular positive
justification of punishment; it merely purports to explain why punishing
offenders does not violate their rights. This is consistent with maintaining
that the positive justification of punishment is that it helps reduce crime, or
conversely, that wrongdoers deserve to be punished. Thus the forfeiture view

does not provide a complete account of the justification of punishment.

Proponents, however, take this feature to be a virtue rather than a weakness
of the view.
The forfeiture claim raises a number of key questions: first, why does
someone who violates the law thereby forfeit the right not to be punished?
For those who are gripped by the dilemma of why punishing offenders does
not violate their rights, the mere answer that offenders forfeit their rights,
without some deeper account of what this forfeiture amounts to, may seem
inadequate. Thus some theorists attempt to ground their forfeiture claim in a
more comprehensive moral or political theory (see, for instance, Morris,
1991).
Second, what is the nature of the rights forfeited? Do offenders forfeit the
same rights they violate? If so, then this raises some of the same challenges
as we saw with certain forms of retributivism: what right is forfeited by a
childless kidnapper, for example? Alternatively, is the forfeited right simply
the right not to be punished? If every offender forfeits this same, general
right, then on what basis can we distinguish what sentence is permissible for
different offenders? For example, if the burglar forfeits the same right as the
murderer, then what prevents us from imposing the same punishment in
each case (could two offenders forfeit the same right to different degrees, as
some have suggested)?
Third, how should we determine the duration of the forfeiture? Fourth, if an
offender forfeits her right against punishment, then why does the state
maintain an exclusive right to punish? Why are other individuals not
permitted to punish?

b. Consent
Rights forfeiture theorists argue that punishment does not violate offenders
rights because offenders forfeit the relevant rights. Another way that
punishment might be said not to violate offenders rights is if
offenders waive their rights. This is the central claim of the consent view.
Defended most notably by C. S. Nino (1983), the consent view holds that

when a person voluntarily commits a crime while knowing the consequences

of doing so, she effectively consents to these consequences. In doing so, she
waives her right not to be subject to punishment. This is not to say that she
explicitly consents to being punished, but rather that by her voluntary action
she tacitly consents to be subject to what she knows are the consequences.
Like the forfeiture view, the consent view does not supply a positive
justification for punishment. To say that a person consents to some
treatment does not by itself provide us with a reason to treat her that way.
So the consent view, like the forfeiture view, is compatible with
consequentialist aims or with the claim that punishment is a deserved
response to offending.
One challenge for the consent view is that it does not seem to justify
punishment of offenders who do not know that their acts are subject to
punishment. For someone to have consented to be subject to certain
consequences of an act, she must know of these consequences. Whats
more, even if an offender knows she is committing a punishable act, she
might not know the extent of the punishment to which she is subject. If so,
then it is not clear how she can be said to consent to her punishment. It is
not clear, for example, that a robber who knows that robbery is a punishable
offense but does not realize the severity of the punishment to which she will
be subject thereby consents to her sentence.
By contrast, other critics have charged that the consent view cannot rule out
sentences that most of us would find excessive. This is because a person
who voluntarily commits an action with knowledge of the legal
consequences, whatever these consequences happen to be, has consented
to be subject to the consequences. As Larry Alexander has put it: If the law
imposes capital punishment for overparking, then one who voluntarily
overparks consents to be executed (Alexander, 1986).
Another difficulty for the consent view is that tacit consent typically can be
overridden by explicit denials of consent. Thus it would seem to follow that
one who tacitly consents to be subject to punishment could override this
tacit consent by explicitly denying that she consents. But of course, we do

not think that an offender should be able to avoid punishment by explicitly

refusing to consent to it (Boonin, 2008).

c. Self-Defense
Another proposed justification of punishment conceives of punishment as a
form of societal self-defense. First consider self-defense in the interpersonal
context: When an assailant attacks me, he culpably creates a situation in
which harm will occur: either harm to me if I do not effectively defend myself
or harm to him if I do. In such a circumstance, I am justified in acting so that
the harm falls on my attacker rather than on me. Similarly, when an offender
creates a situation in which either she or her victim will be harmed, the state
is permitted to use force to ensure that the harm falls on the perpetrator
rather than on the victim (Montague, 1995).
So far, this view appears to justify state intervention only to stop ongoing
crimes or ward off impending crimes. How does this view justify punishment
as a response to past crimes? Advocates of the view claim that the state is
not only justified in intervening to stop actual offenses; it is also permitted to
threaten the use of force to deter such crimes. For the threat to be credible
and thus effective as a deterrent, however, the state will need to follow
through on the threat in cases in which offenders are not deterred. Thus
punishment of offenders is permissible.
Notice that although the self-defense account views punishment as a
deterrent threat, it is not a pure consequentialist account. Crucial to
punishments permissibility on the self-defense view is the claim that an
offender has culpably created the circumstance in which harm will fall either
on the perpetrator or the victim. This backward-looking element is missing
from pure consequentialist accounts that cite punishments deterrent effects
in defending the practice.
Critics object that the analogy between self-defense and punishment breaks
down in a number of respects. First, many self-defense theorists argue that
the logic of defensive force permits the use of such force even against
innocent threats. But we do not typically believe that, by analogy,

punishment of innocent people is permitted, even if such punishment helped

to maintain the credibility of a deterrent threat. Second, the degree of force
that is permitted to stop an actual attack may far exceed what we intuitively
believe would be permitted as punishment of an offense that has already
been committed.
Third, it is one thing to follow through on a threat in order to deter the person
who has just offended from offending again. It is another thingand one
might argue, more difficult to justifyto punish one person in order to
maintain a credible deterrent threat against the public generally. If we
believe the primary deterrent effect of punishment is as a general deterrent
(rather than as a specific deterrent), then the analogy with typical accounts
of self-defense seems strained. It would be as if, to deter the oncoming
assailant from following through with his attack, I grab someone nearby (who
has previously attacked me) and inflict the same degree of harm that I would
aim to inflict on the assailant to defend myself. This might, of course, be
permissible if my previous attacker had thereby acquired a duty to protect
me from future harm by allowing himself to be punished as a means of
maintaining a credible deterrent threat (Tadros, 2011).

d. Moral Education
The moral education view shares certain features of consequentialist
accounts as well as retributivist accounts. On this view, punishment is
justified as a means of teaching a moral lesson to those who commit crimes
(and perhaps to community members more generally, as well).
Like standard consequentialist accounts, the education view acknowledges
that part of the story of punishments justification involves its importance in
reducing crime. But the education theorist also takes seriously the worry
expressed by many retributivists that aiming to shape peoples behavior
merely by issuing threats is, in G. W. F. Hegels words, much the same as
when one raises a cane against a dog; a man is not treated in accordance
with his dignity and honour, but as a dog (Hegel, 1821: 36). By contrast, a
central feature of the moral education view is that those who commit crimes
are moral agents, capable of reflecting on and responding to moral reasons.

Thus moral education theorists view punishment not as a means of

conditioning people to behave in certain ways, but rather of teaching the
wrongdoer that the action she did (or wants to do) is forbidden because it is
morally wrong and should not be done for that reason (Hampton, 1984).
Another way to express this difference between the education view and
standard consequentialist views is that consequentialist views focus entirely
on whether punishment promotes some goal. The education view, however,
holds that only certain means are appropriate for pursuing this goal: namely,
punishment aims to engage with the offender as a moral agent, to teach her
that (and why) her behavior was morally wrong, so that she will reform
herself. Thus we can even distinguish the education view from
consequentialist accounts that aim at crime reduction through offender
reform. For such consequentialist accounts, punishments justification is
solely a matter of whether, on balance, it promotes these ends. The
education view sets offender reform as an end, but it also grounds certain
constraints on how we may appropriately pursue this end.
The education view, like the retributive censure view discussed earlier, views
punishment as a communicative enterprise. Punishment communicates to
offenders (indeed, to the community more generally) that what they have
done is wrong. Thus on both accounts, punishment aims to encourage
offenders to reform themselves. But whereas the retributive censure
theorists view the message conveyed by punishment as justified insofar as it
is deserved, education theorists contend that punishment is justified in virtue
of what it aims to accomplish. In this respect, the education view sits more
comfortably with standard consequentialist accounts than with retributivist
views.
The education view conceives of punishment as aiming to confer a benefit on
the offender, the benefit of moral education. This is not to say that
punishment is not burdensome; as we have seen, its burdensomeness is an
essential feature of punishment. But the burdens of punishment are intended
to be ultimately beneficial. Thus education theorists roundly reject accounts
according to which it is permissible (or even required) to inflict harm on

those guilty of wrongdoing. Instead, education theorists hold, following Plato,

that we should never do harm to anyone, even those who have wronged us.
Critics have raised various objections to the moral education view. Some are
skeptical about whether punishment is the most effective means of moral
education. Others point out that many (perhaps most) offenders are not
apparently in need of moral education: many offenders realize they are doing
something wrong but do so anyway. Even those who do not realize this as
they are acting may recognize it soon afterward. Thus they do not seem to
need moral education. Finally, some object that the education view is
inappropriately paternalistic. According to the education view, after all, the
state is justified in coercively restricting offenders liberties as a means to
conferring a benefit (moral education) on them. Many liberal theorists are
uncomfortable, however, with the idea that the state may coerce a person
for her own benefit.

e. Hybrid Approaches
Finally, some theorists have responded to seemingly intractable disputes
between consequentialists and retributivists by contending that the question
of punishments permissibility is not actually a single question at all. Instead,
establishing punishments permissibility involves answering a number of
questions: questions about the aim of the practice, about its limits, and so
on. Once we distinguish different questions that bear on punishments
permissibility, we can then recognize that these questions may be answered
by appeal to different moral considerations. What emerges is a hybrid
account of punishments permissibility.
The most famous articulation of a hybrid view comes from H. L. A. Hart
(1968), although there have been numerous attempts to develop such
accounts both before and after Hart. The specifics of these accounts vary
somewhat, but in general the point has been to distinguish the question of
punishments aim (Hart called this the general justifying aim) from the
question of how we must constrain our pursuit of that aim. The first question,
about punishments aim, is usually answered according to consequentialist
considerations, whereas the second question, about appropriate constraints,

is typically answered by appeal to retributivist principles. In other words, if

we are asking what reason could justify society in maintaining a system of
punishment, the answer will appeal to punishments role in reducing crime,
and thereby protecting the safety and security of community members. But if
we ask how we may punish in particular cases, the answer will appeal to
retributivist principles about proportionality and desert. Some have
distinguished these questions in terms of the proper (consequentialist)
rationale of legislators in criminalizing certain types of behaviors and the
proper (retributivist) rationale of judges in imposing sentences on those who
violate the criminal laws.
Although such views are sometimes described as two-question or twolevel views, with the focus on consequentialist aims and retributivist
constraints, there is no reason in principle why we should distinguish only
two questions. As we saw earlier, punishment actually raises a host of
specific normative questions, and so if we accept the general strategy of
distinguishing questions and answering them by appeal to different
considerations, then there is no reason in principle to stop with only a twolevel hybrid theory. A hybrid view might offer distinct considerations in
answer to a variety of questions: what is the positive aim of punishment?
Does punishment violate offenders rights? How severely may we punish in
particular cases? What mode of punishment is permissible in particular
cases? And so on.
Also, although hybrid theories typically follow the pattern of aims and
constraints, so that consequentialism provides the reason to have an
institution of punishment and retributivism provides constraints on how we
punish, there is no reason in principle why this could not be reversed. A
hybrid theory might hold that suffering is an intrinsically appropriate
(deserved) response to wrongdoing, but then endorse as a constraint, for
example, that such retributive punishment should never tend to undermine
offender reform.
Critics have charged hybrid accounts with being ad hoc and unstable.
Although we can distinguish different questions related to punishments
permissibility, it is a mistake to think that the answers to these questions are

entirely independent of each other, so that we can answer each by appeal to

entirely distinct considerations. For example, if we accept the
consequentialist view that punishments general justifying aim is that it helps
to deter crime, then why would considerations of deterrence not also play a
role (even a decisive role) in how severely we punish in particular cases?
Why should retributivist proportionality considerations govern in sentencing
if these conflict with the pursuit of crime reduction through deterrence?
Retributivists, for their part, often argue that hybrid theories such as Harts,
on which consequentialism supplies the justifying aim of punishment,
relegate retributivism to a peripheral role. Retributivists, after all, tend to
regard consequentialism as providing inappropriate reasons to punish.
Characterizing retributivisms role as providing constraints on the pursuit of
consequentialist aims is thus unsatisfying to many retributivists.
6. Abolitionism

Some scholars are unpersuaded by any of the standardly articulated

justifications of punishment. In fact, they conclude that punishment is
morally unjustified, and thus that the practice should be abolished. An
obvious question for abolitionists, of course, is what (if anything) should take
the place of punishment. That is, how should society respond to those who
behave in ways (committing tax fraud, burglary, assault, and so on) that
currently are subject to punishment?
One option would be to endorse a model of treatment rather than
punishment. On this model, an offender is viewed as manifesting some form
of disease or pathology, and the appropriate response is thus to try to treat
and cure the person rather than to punish her. Treatment differs from
punishment, first, because it need not be burdensome. At least in principle,
treatment could be pleasant. In practice, of course, treatment may often be
burdensomeindeed, it may involve many of the same sorts of restrictions
and burdens as we find with punishment. But even though courses of
treatment may be burdensome, treatment does not typically convey the
condemnation that is characteristic of punishment. After all, we generally
think of those who are sick as warranting sympathy or concern, not
condemnation.

Other options for abolitionists would be to endorse some model of restitutive

or restorative, rather than criminal, justice. We might require that offenders
make restitution to their victims, as defendants in civil lawsuits are often
required to make restitution to plaintiffs (Boonin, 2008: 213-75). Or offenders
might engage with victims in a process of restorative justice, one in which
both offenders and victims play an active role, with aims of repairing the
harms done and restoring the relationships that have been damaged
(Braithwaite, 1999). Neither the restitutive nor the restorative models are
centrally concerned with imposing intended, censuring burdens on offenders.
Not surprisingly, these alternative accounts are themselves subject to
various objections. Critics of the treatment model, for instance, charge that it
provides insufficient limits on what sort of treatment of offenders is
permissible. The aim of curing diseased individuals might warrant quite
severe treatment, both in scope and duration. Similarly, scholars have
argued that the treatment model fails properly to respect offenders, as it
treats them merely as patients rather than as moral agents who are
responsible, and should be held responsible, for their actions (Morris, 1968).
Critics of the restitutive and restorative models may point out that some
crimes do not clearly lend themselves to restitution or restoration: some
crimes may seem so heinous that no victim restitution or restoration of
relationships is possible. Other crimes do not have clearly specifiable victims.
In addition, consequentialists may worry that practices of restitution or
restoration may be inadequate as means of crime reduction if, for example,
they are less effective than punishment at deterring potential offenders.
Retributivists also may argue that something important is lost when we
respond to wrongdoing solely with restitutive or restorative practices.
Particularly for those who hold that an important function of punishment is to
convey societal censure, restitution or restoration may seem inadequate as
responses to crime insofar as they are not essentially concerned with
censuring offenders. Alternatively, some retributivists argue that the
restorative ideals can best be served by a system of retributive punishment
(Duff, 2001; Bennett, 2008).