Retributivism, consequentialism, and the intrinsic goodness of punishment

Law and Philosophy

Volumn 16, Issue 5, 1997, Pages 507-528

  Dolinko, David ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 0031530271     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.2307/3505018     Document Type: Article

References (73)

1. "[R]etribution is suddenly being seen by thinkers of all political persuasions as perhaps the strongest ground, after all, upon which to base a system of punishment." Martin Gardner, "The Renaissance of Retribution - An Examination of Doing Justice," Wisc. L. Rev. (1976): 784 (footnote omitted). See also Robert Satter, Doing Justice: A Trial Judge at Work (New York: Simon and Schuster, 1990), pp. 170-171; James Q. Wilson & Richard Herrnstein, Crime and Human Nature (New York: Simon and Schuster, 1985), pp. 496-497; Jeffrey Leigh Sedgwick, "Reason, Anger, and Retribution," in Fred Baumann & Kenneth Jensen (eds.), Issues in Criminal Justice (Charlottesville: University of Virginia Press, 1989), p. 41; Michael Tonry and Norval Morris, "Sentencing Reform in America," in Gordon Hawkins & Franklin Zimring (eds.), The Pursuit of Criminal Justice (Chicago: University of Chicago Press, 1984), pp. 254-255.
2. "[R]etribution is suddenly being seen by thinkers of all political persuasions as perhaps the strongest ground, after all, upon which to base a system of punishment." Martin Gardner, "The Renaissance of Retribution - An Examination of Doing Justice," Wisc. L. Rev. (1976): 784 (footnote omitted). See also Robert Satter, Doing Justice: A Trial Judge at Work (New York: Simon and Schuster, 1990), pp. 170-171; James Q. Wilson & Richard Herrnstein, Crime and Human Nature (New York: Simon and Schuster, 1985), pp. 496-497; Jeffrey Leigh Sedgwick, "Reason, Anger, and Retribution," in Fred Baumann & Kenneth Jensen (eds.), Issues in Criminal Justice (Charlottesville: University of Virginia Press, 1989), p. 41; Michael Tonry and Norval Morris, "Sentencing Reform in America," in Gordon Hawkins & Franklin Zimring (eds.), The Pursuit of Criminal Justice (Chicago: University of Chicago Press, 1984), pp. 254-255.
3. "[R]etribution is suddenly being seen by thinkers of all political persuasions as perhaps the strongest ground, after all, upon which to base a system of punishment." Martin Gardner, "The Renaissance of Retribution - An Examination of Doing Justice," Wisc. L. Rev. (1976): 784 (footnote omitted). See also Robert Satter, Doing Justice: A Trial Judge at Work (New York: Simon and Schuster, 1990), pp. 170-171; James Q. Wilson & Richard Herrnstein, Crime and Human Nature (New York: Simon and Schuster, 1985), pp. 496-497; Jeffrey Leigh Sedgwick, "Reason, Anger, and Retribution," in Fred Baumann & Kenneth Jensen (eds.), Issues in Criminal Justice (Charlottesville: University of Virginia Press, 1989), p. 41; Michael Tonry and Norval Morris, "Sentencing Reform in America," in Gordon Hawkins & Franklin Zimring (eds.), The Pursuit of Criminal Justice (Chicago: University of Chicago Press, 1984), pp. 254-255.
4. "[R]etribution is suddenly being seen by thinkers of all political persuasions as perhaps the strongest ground, after all, upon which to base a system of punishment." Martin Gardner, "The Renaissance of Retribution - An Examination of Doing Justice," Wisc. L. Rev. (1976): 784 (footnote omitted). See also Robert Satter, Doing Justice: A Trial Judge at Work (New York: Simon and Schuster, 1990), pp. 170-171; James Q. Wilson & Richard Herrnstein, Crime and Human Nature (New York: Simon and Schuster, 1985), pp. 496-497; Jeffrey Leigh Sedgwick, "Reason, Anger, and Retribution," in Fred Baumann & Kenneth Jensen (eds.), Issues in Criminal Justice (Charlottesville: University of Virginia Press, 1989), p. 41; Michael Tonry and Norval Morris, "Sentencing Reform in America," in Gordon Hawkins & Franklin Zimring (eds.), The Pursuit of Criminal Justice (Chicago: University of Chicago Press, 1984), pp. 254-255.
5. "[R]etribution is suddenly being seen by thinkers of all political persuasions as perhaps the strongest ground, after all, upon which to base a system of punishment." Martin Gardner, "The Renaissance of Retribution - An Examination of Doing Justice," Wisc. L. Rev. (1976): 784 (footnote omitted). See also Robert Satter, Doing Justice: A Trial Judge at Work (New York: Simon and Schuster, 1990), pp. 170-171; James Q. Wilson & Richard Herrnstein, Crime and Human Nature (New York: Simon and Schuster, 1985), pp. 496-497; Jeffrey Leigh Sedgwick, "Reason, Anger, and Retribution," in Fred Baumann & Kenneth Jensen (eds.), Issues in Criminal Justice (Charlottesville: University of Virginia Press, 1989), p. 41; Michael Tonry and Norval Morris, "Sentencing Reform in America," in Gordon Hawkins & Franklin Zimring (eds.), The Pursuit of Criminal Justice (Chicago: University of Chicago Press, 1984), pp. 254-255.
6. See, e.g., R.A. Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986), p. 195; Igor Primoratz, Justifying Legal Punishment (Atlantic Highlands, N.J.: Humanities Press International, 1989), p. 12; Nigel Walker, Why Punish? (Oxford: Oxford University Press, 1991), p. 7; Lawrence Alexander, "The Doomsday Machine: Proportionality, Punishment, and Prevention," The Monist 63 (1980): 199; J.D. Mabbott, "Punishment," Mind 48 (1939): 152-167; H.J. McCloskey, "A Non-Utilitarian Approach to Punishment," Inquiry 8 (1965): 239-255; Jeffrie Murphy, "Three Mistakes About Retributivism," Analysis 31 (1971): 166-169; Lloyd Weinreb, "Desert, Punishment, and Criminal Responsibility," Law and Contemporary Problems 49 (1986): 47.
7. See, e.g., R.A. Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986), p. 195; Igor Primoratz, Justifying Legal Punishment (Atlantic Highlands, N.J.: Humanities Press International, 1989), p. 12; Nigel Walker, Why Punish? (Oxford: Oxford University Press, 1991), p. 7; Lawrence Alexander, "The Doomsday Machine: Proportionality, Punishment, and Prevention," The Monist 63 (1980): 199; J.D. Mabbott, "Punishment," Mind 48 (1939): 152-167; H.J. McCloskey, "A Non-Utilitarian Approach to Punishment," Inquiry 8 (1965): 239-255; Jeffrie Murphy, "Three Mistakes About Retributivism," Analysis 31 (1971): 166-169; Lloyd Weinreb, "Desert, Punishment, and Criminal Responsibility," Law and Contemporary Problems 49 (1986): 47.
8. See, e.g., R.A. Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986), p. 195; Igor Primoratz, Justifying Legal Punishment (Atlantic Highlands, N.J.: Humanities Press International, 1989), p. 12; Nigel Walker, Why Punish? (Oxford: Oxford University Press, 1991), p. 7; Lawrence Alexander, "The Doomsday Machine: Proportionality, Punishment, and Prevention," The Monist 63 (1980): 199; J.D. Mabbott, "Punishment," Mind 48 (1939): 152-167; H.J. McCloskey, "A Non-Utilitarian Approach to Punishment," Inquiry 8 (1965): 239-255; Jeffrie Murphy, "Three Mistakes About Retributivism," Analysis 31 (1971): 166-169; Lloyd Weinreb, "Desert, Punishment, and Criminal Responsibility," Law and Contemporary Problems 49 (1986): 47.
9. See, e.g., R.A. Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986), p. 195; Igor Primoratz, Justifying Legal Punishment (Atlantic Highlands, N.J.: Humanities Press International, 1989), p. 12; Nigel Walker, Why Punish? (Oxford: Oxford University Press, 1991), p. 7; Lawrence Alexander, "The Doomsday Machine: Proportionality, Punishment, and Prevention," The Monist 63 (1980): 199; J.D. Mabbott, "Punishment," Mind 48 (1939): 152-167; H.J. McCloskey, "A Non-Utilitarian Approach to Punishment," Inquiry 8 (1965): 239-255; Jeffrie Murphy, "Three Mistakes About Retributivism," Analysis 31 (1971): 166-169; Lloyd Weinreb, "Desert, Punishment, and Criminal Responsibility," Law and Contemporary Problems 49 (1986): 47.
10. See, e.g., R.A. Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986), p. 195; Igor Primoratz, Justifying Legal Punishment (Atlantic Highlands, N.J.: Humanities Press International, 1989), p. 12; Nigel Walker, Why Punish? (Oxford: Oxford University Press, 1991), p. 7; Lawrence Alexander, "The Doomsday Machine: Proportionality, Punishment, and Prevention," The Monist 63 (1980): 199; J.D. Mabbott, "Punishment," Mind 48 (1939): 152-167; H.J. McCloskey, "A Non-Utilitarian Approach to Punishment," Inquiry 8 (1965): 239-255; Jeffrie Murphy, "Three Mistakes About Retributivism," Analysis 31 (1971): 166-169; Lloyd Weinreb, "Desert, Punishment, and Criminal Responsibility," Law and Contemporary Problems 49 (1986): 47.
11. See, e.g., R.A. Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986), p. 195; Igor Primoratz, Justifying Legal Punishment (Atlantic Highlands, N.J.: Humanities Press International, 1989), p. 12; Nigel Walker, Why Punish? (Oxford: Oxford University Press, 1991), p. 7; Lawrence Alexander, "The Doomsday Machine: Proportionality, Punishment, and Prevention," The Monist 63 (1980): 199; J.D. Mabbott, "Punishment," Mind 48 (1939): 152-167; H.J. McCloskey, "A Non-Utilitarian Approach to Punishment," Inquiry 8 (1965): 239-255; Jeffrie Murphy, "Three Mistakes About Retributivism," Analysis 31 (1971): 166-169; Lloyd Weinreb, "Desert, Punishment, and Criminal Responsibility," Law and Contemporary Problems 49 (1986): 47.
12. See, e.g., R.A. Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986), p. 195; Igor Primoratz, Justifying Legal Punishment (Atlantic Highlands, N.J.: Humanities Press International, 1989), p. 12; Nigel Walker, Why Punish? (Oxford: Oxford University Press, 1991), p. 7; Lawrence Alexander, "The Doomsday Machine: Proportionality, Punishment, and Prevention," The Monist 63 (1980): 199; J.D. Mabbott, "Punishment," Mind 48 (1939): 152-167; H.J. McCloskey, "A Non-Utilitarian Approach to Punishment," Inquiry 8 (1965): 239-255; Jeffrie Murphy, "Three Mistakes About Retributivism," Analysis 31 (1971): 166-169; Lloyd Weinreb, "Desert, Punishment, and Criminal Responsibility," Law and Contemporary Problems 49 (1986): 47.
13. See, e.g., R.A. Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986), p. 195; Igor Primoratz, Justifying Legal Punishment (Atlantic Highlands, N.J.: Humanities Press International, 1989), p. 12; Nigel Walker, Why Punish? (Oxford: Oxford University Press, 1991), p. 7; Lawrence Alexander, "The Doomsday Machine: Proportionality, Punishment, and Prevention," The Monist 63 (1980): 199; J.D. Mabbott, "Punishment," Mind 48 (1939): 152-167; H.J. McCloskey, "A Non-Utilitarian Approach to Punishment," Inquiry 8 (1965): 239-255; Jeffrie Murphy, "Three Mistakes About Retributivism," Analysis 31 (1971): 166-169; Lloyd Weinreb, "Desert, Punishment, and Criminal Responsibility," Law and Contemporary Problems 49 (1986): 47.
14. Michael Moore, "Justifying Retributivism," Israel. L. Rev. 27 (1993): 15-49.
15. As H.L.A. Hart noted, "theories of punishment" is to some extent an unfortunate term "because theories of punishment are not theories in any normal sense. They are not, as scientific theories are, assertions or contentions as to what is or what is not the case . . . On the contrary, . . . [they] are moral claims as to what justifies the practice of punishment . . ." H.L.A. Hart, Punishment and Responsibility (New York and Oxford: Oxford University Press, 1968), p. 72.
16. David Dolinko, Some Thoughts About Retributivism, Ethics 101 (1991): 537.
17. Moore, supra note 3, p. 17. Deontological theories are more commonly defined as those that deny that the rightness of an action is always determined solely by the goodness of its (actual or expected) consequences. See William Frankena, Ethics (Englewood Cliffs, N.J.: Prentice-Hall, 1963), p. 14; Richard Brandt, Ethical Theory (Englewood Cliffs, N.J.: Prentice-Hall, 1959), pp. 354- 355. This definition and Moore's definition yield different results in certain cases. Consider, for example, ethical egoism - the theory that the right action for a person, at any moment, is whatever action is then open to him which will produce the greatest balance of good over evil for him. By the standard definition this is a consequentialist theory: it makes the rightness or wrongness of any given act a function of the goodness or badness of its consequences. Yet egoism enjoins on everyone, at all times, a norm that is "agent-relative" in Moore's sense - "addressed to each person individually at a particular time" and "not concerned with maximizing conformity" either to itself or to other norms "on other occasions." I do not believe that this problem affects the issues I wish to discuss, and I shall ignore it in what follows.
18. Moore, supra note 3, p. 17. Deontological theories are more commonly defined as those that deny that the rightness of an action is always determined solely by the goodness of its (actual or expected) consequences. See William Frankena, Ethics (Englewood Cliffs, N.J.: Prentice-Hall, 1963), p. 14; Richard Brandt, Ethical Theory (Englewood Cliffs, N.J.: Prentice-Hall, 1959), pp. 354-355. This definition and Moore's definition yield different results in certain cases. Consider, for example, ethical egoism - the theory that the right action for a person, at any moment, is whatever action is then open to him which will produce the greatest balance of good over evil for him. By the standard definition this is a consequentialist theory: it makes the rightness or wrongness of any given act a function of the goodness or badness of its consequences. Yet egoism enjoins on everyone, at all times, a norm that is "agent-relative" in Moore's sense - "addressed to each person individually at a particular time" and "not concerned with maximizing conformity" either to itself or to other norms "on other occasions." I do not believe that this problem affects the issues I wish to discuss, and I shall ignore it in what follows.
19. Moore, supra note 3, at 18. For example, one might favor granting immunity to a guilty criminal in order to gain his help in prosecuting several others even more guilty.
20. Indeed, Moore himself formerly endorsed this assumption: Michael Moore, "The Moral Worth of Retribution," in Ferdinand Schoeman (ed.), Character, Responsibility, and the Emotions (Cambridge: Cambridge University Press, 1987), p. 182.
21. Moore, supra note 3, at 19 (both emphases in original).
22. Id.
23. One writer, who presupposed that retributivists are not consequentialists, put forward this fallibility argument to contend that retributivists simply could not support any actual punishment institution. George Schedler, "Can Retributivists Support Legal Punishment?," The Monist 63 (1980): 185-199.
24. Moore, supra note 3, at 20.
25. Id.
26. Philippa Foot, "The Problem of Abortion and the Doctrine of the Double Effect," in Virtues and Vices (Oxford: Basil Blackwell, 1978), p. 22.
27. Id. (emphasis in original).
28. Id.
29. Elsewhere Moore has explained that norms are absolute if "they cannot be violated, whatever the consequences may be of not violating them on some occasion." Michael Moore, "Torture and the Balance of Evils," Israel. L. Rev. 23 (1989): 297-298. The norm prohibiting knowingly creating a high risk of death in order to profit from potential victims' ignorance of that risk would seem "absolute" in this sense - we would not permit it to be violated no matter how large the profit.
30. See Moore, supra note 3, at 20 n. 12.
31. See, e.g., Foot, supra note 14, at 20; Nancy Davis, "The Doctrine of Double Effect: Problems of Interpretation," Pacific Philosophical Quarterly 65 (1984): 108.
32. Thomas Nagel, The View from Nowhere (New York: Oxford University Press, 1986), p. 179.
33. In perhaps the most sophisticated recent defense of the DDE, Warren Quinn formulated the doctrine in a way that avoids asking whether the agent "intended" the ultimate harm. Warren Quinn, "Actions, Intentions, and Consequences: The Doctrine of Double Effect," Phil. & Pub. Affairs 18 (1989): 334-351 (1989). Quinn instead distinguished between harmful direct and indirect agency. Harmful direct agency - the disfavored, harder-to-justify sort - is "agency in which harm comes to some victims, at least in part, from the agent's deliberately involving them in something in order to further his purpose precisely by way of their being so involved." Id. at 343. (Quinn appears to add the further requirement that the agent must violate a negative or positive moral right of the victim. Id. at 346-347.) Suppose we said that agent-relative moral norms bind us absolutely only in prohibiting harmful direct agency. Perversely, this would seem to make mistaken punishment of the innocent, but not the actions of the wicked merchants, a violation of an absolute norm! For when fallible institutions of punishment inflict harm on wrongly-convicted innocents, what happens is that certain agents - those meting out the punishment - "deliberately involve [the innocents] in something" - namely, in the punishment (e.g., incarceration) - "in order to further [the punishers'] purpose" (be it retribution, deterrence, or reform) "precisely by way of their being so involved." (Additionally, the innocents' moral rights are violated when they are punished by mistake.) This is direct harmful agency. By contrast, since the wicked merchants don't actually care whether any consumers of the cooking oil even exist, they do not "deliberately involve" any such consumers in anything "in order to further [their] purpose precisely by way of [the consumers'] being so involved," and their harmful agency is indirect.
34. Moore, supra note 3, at 17 (emphasis in original).
35. Moore himself suggests that the consequentialist-retributivist will recognize "other equally valuable" good-making factors. Id., at 19. And he objects to assuming that retributivists of whatever stripe are "monomaniacally focused on the achievement of retributive justice" to the exclusion of "other intrinsic goods." Id., at 34.
36. Id., at 15 (emphasis added). Perhaps one could distinguish the claim that good effects of punishment, other than its being deserved, play a part in making it just in a given case from the claim that such good effects play a part in making punishment right in that case, and argue that a consequentialist-retributivist can John Hospers, Human Conduct (New York: Harcourt, Brace & World, 1961), pp. 104-05. See also William Frankena, Ethics, supra note 6, pp. 63-67; Robert Nozick, Philosophical Explanations (Cambridge, Mass.: Harvard University Press, 1981), p. 414.
37. Id., at 15 (emphasis added). Perhaps one could distinguish the claim that good effects of punishment, other than its being deserved, play a part in making it just in a given case from the claim that such good effects play a part in making punishment right in that case, and argue that a consequentialist-retributivist can John Hospers, Human Conduct (New York: Harcourt, Brace & World, 1961), pp. 104-05. See also William Frankena, Ethics, supra note 6, pp. 63-67; Robert Nozick, Philosophical Explanations (Cambridge, Mass.: Harvard University Press, 1981), p. 414.
38. Id., at 15 (emphasis added). Perhaps one could distinguish the claim that good effects of punishment, other than its being deserved, play a part in making it just in a given case from the claim that such good effects play a part in making punishment right in that case, and argue that a consequentialist-retributivist can John Hospers, Human Conduct (New York: Harcourt, Brace & World, 1961), pp. 104-05. See also William Frankena, Ethics, supra note 6, pp. 63-67; Robert Nozick, Philosophical Explanations (Cambridge, Mass.: Harvard University Press, 1981), p. 414.
39. Moore, supra note 3, p. 15.
40. For the intrinsic-good claim, see, e.g., A. C. Ewing, The Morality of Punishment p. 13 (Patterson Smith 1970) (1929) (retributivism "means that the punishment of the guilty is in itself something of value quite apart from the fact that it is a method of attaining other ends"); Robert Nozick, supra note 25, at 374 (1981) (presenting a retributive theory in which punishment "is seen as right or good in itself, apart from the further consequences to which it might lead");
41. For the intrinsic-good claim, see, e.g., A. C. Ewing, The Morality of Punishment p. 13 (Patterson Smith 1970) (1929) (retributivism "means that the punishment of the guilty is in itself something of value quite apart from the fact that it is a method of attaining other ends"); Robert Nozick, supra note 25, at 374 (1981) (presenting a retributive theory in which punishment "is seen as right or good in itself, apart from the further consequences to which it might lead");
42. Lawrence Davis, "They Deserve to Suffer," Analysis 32 (1972): 136-140, p. 136 ("hallmark" of retributivism is claim that "There is some intrinsic value in the suffering of the guilty"). For the desert claim, see, e.g., Igor Primoratz, supra note 2, p. 12 (for retributivism, "punishment is morally justified because it is just" and "is just because it is deserved by [the] offense"); H. J. McCloskey, supra note 2, p. 260 ("If the deserved punshment is inflicted, all we need do to justify it is to point out that the crime committed deserved and merited such punishment");
43. C.W.K. Mundle, "Punishment and Desert," Phil. Q. 4 (1954): 221 (one tenet of retributivism is that "the fact that a person has committed a moral offence provides a sufficient reason for his being made to suffer").
44. See, e.g., Benn, "Punishment," in The Encyclopedia of Philosophy (1967), vol. 7, at 30.
45. See Lawrence Davis, supra note 27, at 136-137.
46. Moore, supra note 3, at 19 (emphasis in original deleted).
47. U.S. Constitution, Art. 1, §8, cl. 8.
48. The locus classicus is Immanuel Kant, The Metaphysical Elements of Justice 100-102 (John Ladd trans., Bobbs-Merrill 1965), containing the celebrated claim that even a society about to dissolve itself must first execute "the last murderer remaining in prison . . . so that everyone will duly receive what his actions are worth and so that the bloodguilt thereof will not be fixed on the people." Id. at 102. Kant's devotion to this retributive thesis has, however, recently been questioned. See Sharon Byrd, "Kant's Theory of Punishment: Deterrence in its Threat, Retribution in its Execution," Law & Phil. 8 (1989): 151-200; Jeffrie Murphy, "Does Kant Have a Theory of Punishment?," Colum. L. Rev. 87 (1987): 509-532.
49. The locus classicus is Immanuel Kant, The Metaphysical Elements of Justice 100-102 (John Ladd trans., Bobbs-Merrill 1965), containing the celebrated claim that even a society about to dissolve itself must first execute "the last murderer remaining in prison . . . so that everyone will duly receive what his actions are worth and so that the bloodguilt thereof will not be fixed on the people." Id. at 102. Kant's devotion to this retributive thesis has, however, recently been questioned. See Sharon Byrd, "Kant's Theory of Punishment: Deterrence in its Threat, Retribution in its Execution," Law & Phil. 8 (1989): 151-200; Jeffrie Murphy, "Does Kant Have a Theory of Punishment?," Colum. L. Rev. 87 (1987): 509-532.
50. The locus classicus is Immanuel Kant, The Metaphysical Elements of Justice 100-102 (John Ladd trans., Bobbs-Merrill 1965), containing the celebrated claim that even a society about to dissolve itself must first execute "the last murderer remaining in prison . . . so that everyone will duly receive what his actions are worth and so that the bloodguilt thereof will not be fixed on the people." Id. at 102. Kant's devotion to this retributive thesis has, however, recently been questioned. See Sharon Byrd, "Kant's Theory of Punishment: Deterrence in its Threat, Retribution in its Execution," Law & Phil. 8 (1989): 151-200; Jeffrie Murphy, "Does Kant Have a Theory of Punishment?," Colum. L. Rev. 87 (1987): 509-532.
51. Moore, supra note 3, at 16.
52. One list of commonly accepted examples of things that are intrinsically good includes "pleasure, happiness, love, knowledge, justice, beauty, proportion, good intention, and the exercise of virtue." Roderick Chisholm, "The Defeat of Good and Evil," Proc. & Addresses of the Am. Phil. Ass'n 42 (1968-69): 22. Chisholm adds that "What these terms refer to are not individuals or concrete things or substances. They are rather . . . states of affairs: there being happy individuals . . . ; there being individuals experiencing pleasure . . . ;" and the like. Id.
53. Warren Quinn, "Theories of Intrinsic Value," Am. Phil. Q. 11 (1974): 123.
54. The point is even clearer if, instead of happiness, we think of other plausible, though more disputable, candidates for the title "intrinsically good." One might well believe that the intensely pleasurable sensations accompanying orgasm are intrinsically good, without for a moment supposing that this suggests a duty to set up state institutions to dole out orgasms to people! Indeed, it's not merely that there is no duty on the state to set up such institutions. There is likewise no duty on any individual to provide others with orgasms whenever he or she is in a position to do so.
55. Again, if one grants that the pleasure experienced in orgasm is intrinsically good, an even stronger case can be made for the conclusion in the text. For no one is likely to suppose we have even a prima facie reason to set up an official institution to provide people with orgasms.
56. Douglas Husak, "Why Punish the Deserving?," Noûs 26 (1992): 450-451.
57. Moore, supra note 3, at 15.
58. Moore, supra note 8, at 182.
59. Dolinko, supra note 5, at 544.
60. A possible response to these examples is to assert that the claim that it's intrinsically good that the guilty be punished applies to those who are found guilty by proper legal procedures, not to those who are "in fact" guilty. But this is an unappealing move, because there are individuals who are erroneously found guilty of crimes, by proper legal procedure, and the infliction of punishment on such unfortunates - though no doubt legally proper and excusable - is hardly an intrinsic good!
61. Dolinko, supra note 5, at 544.
62. Id.
63. Moore, supra note 3, at 34.
64. Joel Feinberg, "Justice and Personal Desert," in Doing and Deserving (Princeton, N.J.: Princeton University Press, 1970), p. 60.
65. Moore, supra note 3, at 34.
66. Id. (emphasis in original).
67. "[W]hat is distinctively retributivist is the view that the guilty receiving their just deserts is an intrinsic good." Id., at 19.
68. For demonstrations of how difficult it can be to make the "forfeiture" notion work, see Richard Burgh, "Do the Guilty Deserve Punishment?," J. Phil. 77 (1982): 198-202; Warren Quinn, "The Right to Threaten and the Right to Punish," Phil. & Public Affairs 14 (1985): 331-334.
69. For demonstrations of how difficult it can be to make the "forfeiture" notion work, see Richard Burgh, "Do the Guilty Deserve Punishment?," J. Phil. 77 (1982): 198-202; Warren Quinn, "The Right to Threaten and the Right to Punish," Phil. & Public Affairs 14 (1985): 331-334.
70. Moore, supra note 3, at 19.
71. See Dolinko, supra note 5, at 538. Consider, for example, New York state, which recently enacted a death-penalty law. A "thirst for retribution" played a prominent part "in New Yorkers' debate over reinstating the death penalty," and Dennis Vacco, the state's attorney general, has spoken in favor of retribution as a decisive consideration in favor of executing murderers. Scott Thomas, The Culture of Vengeance, Buffalo News, April 9, 1995, Buffalo Magazine, at 9 (available on LEXIS).
72. See Dolinko, supra note 5, at 538. Consider, for example, New York state, which recently enacted a death-penalty law. A "thirst for retribution" played a prominent part "in New Yorkers' debate over reinstating the death penalty," and Dennis Vacco, the state's attorney general, has spoken in favor of retribution as a decisive consideration in favor of executing murderers. Scott Thomas, The Culture of Vengeance, Buffalo News, April 9, 1995, Buffalo Magazine, at 9 (available on LEXIS).
73. H.L.A. Hart, supra note 4, at 1.