Retributivist accounts of punishment have their foundations in the work of Kant, and are based on the belief that certain kinds of acts deserve, and require, punishment. For retributivists, justice implies proportion, and so they believe that a punishment should be proportional to the crime committed. This is why it is not uncommon to hear the phrase ‘an eye for an eye’ in retributivist circles. Even if the punishment is proportionate to the crime, however, retributivists have to explain why the punishment isn’t merely legally sanctioned revenge. Central to retributivists theory of a justification of punishment is the concept of the ‘desert of an offender’. To deserve a punishment, an offender must be morally responsible for the act committed. ‘What a person deserves depends solely on what he or she has done’ (Ten, C.L., 1987, p.47).There is a balance across society, and if an individual upsets the balance, then the balance must be restored via punishment. According to Kant, ‘The balance is located in a social contract that all subjects in a society tacitly accept when they choose to live in that society’ (http://centauri.ezt.net.au/ngrahamk/CapitalP.doc). This ‘social contract’ is based on respecting thy neighbour, and any actions with the potential to harm others are prohibited, as are casting restrictions on others’ freedoms. In order to restore the balance to society, the offender must be denied the equal amount of liberties that the victim has been denied as a result of the crime. Some of these laws ‘Impose on every citizen a burden of self restraint’ (Garland, 1990, p.40). This self-restraint is also self-serving, for if all members of society agree to follow them, then the individuals involved will benefit equally from the self-restraint of others. However, it is rarely the case that a whole society will agree to all follow the same set of laws. It is when individuals ignore and break such laws that conflicts of interest arise, and action must be taken by the chosen authorities in order to restore the social order and confidence in the system. Indeed, when an individual acts as he wishes, against the rules of society, he gains an unfair advantage over his peers by accepting the benefits caused by the self-restraint of others, but failing to impose the same self-restraint on himself. Garland insists that ‘The point of punishment is to remove this unfair advantage by imposing on him a punitive burden to match, or make up for, that burden of self-restraint which he evaded’ (Garland, 1990, p.40). Retributivists believe that all people, including offenders, are autonomous moral agents who deserve to be treated with dignity and respect. However, by violating the rights of others, offenders forfeit the legitimate claims over their own rights. For retributivists, ‘If we are justifiably to ignore these rights (of the offender), it could only be when they have been forfeited or alienated’ (Goldman, A.H., 1995, p.31).Retributivism works on the principle that everyone must take responsibility for their own actions, and in committing a crime the offender must take responsibility. By implementing punishment immediately, the state is reminding and reassuring the public that crimes will not go unnoticed and unpunished, and sending a message to the offender saying that his actions will not be tolerated. However, there are problems with the Retributivist account of punishment. Firstly, the principle of ‘restoring balance’ to society via punishment is effective with such petty crime as theft or fraud, for the items lost are normally easily definable, and easily compensated to the victim. In terms of murder, however, how is it possible to restore the balance when the loss cannot be defined by the victim? Whilst retributivists may well utter their slogan ‘an eye for an eye’ at this point, it would be difficult to see how such a principle could work against an offender convicted of rape. Surely this principle insists that the offender, too, should be raped, perhaps by an official rapist? There is a fundamental contradiction, therefore, between the ‘eye for an eye’ principle and the idea of treating all people, including offenders, with dignity and respect. Retributivists hold to the claim that punishment ‘annuls’ crime, but this surely begs the question whether an ‘Act of punishment which is inflicted after the crime has already been committed can annul it?’ (Ten, C.L., 1987). Another flaw in retributivism is that it has no consideration of crime in the future, and as a result takes no preventative measures when dishing out punishments in the present. This creates a system whereby crimes are acted upon, but not prevented in the first place.
Consequentialism, on the other hand, is forward-looking by its very nature. Consequentialists justify punishment on the grounds that it brings consequential benefits to society. They claim that punishments should only be imposed as long as it is for the greater good of society in the future. It isn’t that consequentialists ignore the past, but simply that they only refer to it when speculating about future outcomes. Punishment is deemed unnecessary if there is no evidence to suggest that future crime will be reduced as a result of such action. Likewise, if it doesn’t seem that society is able to benefit in any way from the implementing of a punishment, then that punishment will be discarded. The most fundamental, and important, outcome for consequentialists in imposing punishment on an individual is the prevention of future crime, and thus preventing the harm caused by crime. As with the retributivists’ account of punishment, there are problems with the consequentialists’ account. Firstly, it could be questioned whether punishment is really the best and most effective way to prevent crime, or whether methods such as the therapeutic approach could serve this ideal better. The most basic moral objection posed by critiques of consequentialism is the question of whether the sole consequence of a punishment can legitimately justify such action? Such a position could end up ignoring right and wrong, disregarding any sense of proportion in punishment, and potentially throw society into chaos. Another moral objection to consequentialism would be that it is perfectly possible, and not necessarily discouraged, that an innocent person may be punished if it is in the interest of the society at large. Likewise, it is possible to see how an offender may end up receiving a far more severe punishment than his crime called for. The effects of such a system could prove disastrous. It is possible, even likely, that the innocent individual will experience a loss of faith in the system and may well rebel against it, once his punishment is complete. The offender who has been harshly treated, on the other hand, may develop a deep sense of injustice and frustration and end up a more dangerous individual than he was initially. Consequentialists may again point to the greater good caused by such punishments, but I feel this doesn’t answer the moral objections in a satisfactory manner. To accept ‘A purely consequentialist justification of punishment must also accept that victimisation of offenders and non-offenders is justifiable’ (http://www.psa.ac.uk/cps/1996/magil.pdf).
There are numerous differences between the two accounts of punishment which make them appear completely incompatible with one another. At its most basic, the difference between the two accounts is that retributivists are concerned with the past regarding crimes committed, whereas consequentialists are solely concerned with the future. Whilst with the retributive account only an offender can be punished for something he has done, no more and no less, the consequentialist account maintains that it is possible for an innocent person to be punished based on the assumption that society would benefit from such an action. Where retributivists follow Kant’s demand to treat all individuals as autonomous moral agents who should be treated with dignity and respect, consequentialists ignore the individual’s rights for the sake of the greater good. Consequentialists take into consideration the wider social interests when imposing a punishment on an individual, and are aware of the effect that punishment of an individual can have on society. Retributivists appear to be ignorant of this effect. Retributivists maintain that some form of moral desert is a necessary condition of punishment. However, consequentialists believe moral desert cannot be a necessary condition of punishment because if the greater good of society dictates that an innocent individual must be punished, then punishment is justified without reference to deserts. This apparent stalemate between the two opposing views is only broken through attempts to reach a compromise.
It is in the writings of Anthony Duff that we find a middle-ground between the two approaches. Duff’s main assertion regarding punishment ‘Is to communicate to offenders the censure or condemnation that they deserve for their crimes’ (http://plato.stanford.edu/entries/legal-punishment/). Because crimes against the law are public affairs, they require public condemnation, and it is the role of the state to ensure that such censure is provided through the criminal justice system. This concept of censure allows the theory to move beyond the consequentialist account of punishment because, through the process of censure, the offender is treated as a rational and ultimately responsible agent. This is in contrast to consequentialism, which attempts to force the offender to obey and uphold the law. Duff initially takes a retributivist stance, claiming that offenders deserve punishment of past crimes in the present. However, he moves beyond retributivism, and instead encompasses an aspect of consequentialism, that of looking to the future. It is important to note, though, that while Duff looks to the future when considering punishment, he does so with a view to reforming the offender, as opposed to explicitly preventing future crime, as in the consequentialist account. By combining these two perspectives, as well as considering the present (something quite rare in the study of punishment), Duff attempts to solve the causes of such deviant behaviour. This is lacking in the two previous accounts, for they both focus on punishing an offender without trying to solve the offender’s underlying problems, and so reoffending is a very real problem. Not so with Duff, for he highlights the causes of deviant behaviour, so that when the individual is again in the face of temptation, they will have the knowledge, and hopefully the determination and understanding, to steer clear of such enticement. By considering the situation of those involved prior to the offense, during the offense, and after the offense, Duff is able to propose a more fair and just punishment than those accounts that only take into consideration one particular time-period (e.g. consequentialists and the future). For Duff, punishment has an active function in the way that it is capable of transforming an offender’s character through education and psychological treatment. In this way, Duff uses punishment as a means of expressing to offenders the wrongness of their actions. ‘Punishment is a process of communication between the community and the offender’ (Duff, A., 1996, p.20), hence naming the theory the ‘communication theory’. Communication, for Duff, is a two-way process that requires an active participant, not merely a recipient, with the intention of extracting an appropriate response from the offender. Punishment is also capable of communicating with the victim, assuring them that crimes won’t go unpunished, as well as the rest of the community, reminding them that the demands of the law are real and must be upheld. The concept of ‘penance’ is introduced by Duff in order to help to communicate the idea of censure with the offender. Penance is a form of punishment that draws on religious and moral values to demonstrate its meaning. Penance can take any number of forms, such as a priest listening to an offenders confession, and more often than not involves the deprivation of pleasure on behalf of the offender. Through penance, an offender is able to express his regret of the crime to himself and to the rest of society. However, this communication theory of punishment does raise questions. If the point of punishment is simply to communicate, why not communicate in ways that don’t involve ‘hard treatment’?
In conclusion, I have shown how the differences of the two accounts can’t be reconciled and that they are inherently incompatible. However, I have also shown, through the work of Anthony Duff, how it is possible to take specific elements of both accounts, namely their strengths, and combine them in an altogether new account of punishment, the ‘communication theory’.
