Retribution's role

Indiana Law Journal

Volumn 84, Issue 4, 2009, Pages 1129-1156

  Bronsteen, John ^a  

^a LOYOLA UNIVERSITY   (United States)

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EID: 70349141344     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (151)

1. In particular, these considerations involve the severity of the crime.
2. These considerations involve the increase in overall welfare that might be achieved through punishment due to deterrence and incapacitation, among other things.
3. See Jean-Christophe Merle, A Kantian Critique of Kant's Theory of Punishment, 19 LAW & PHIL. 311, 311 (2000) ("Utilitarianism and deontological ethics have traditionally dominated the debate on the justification of punishment. ").
4. Kyron Huigens, The Dead End of Deterrence, and Beyond, 41 Wm. & MARY L. REV. 943, 954-55 (2000) ("Under consequentialist ethics, punishment is justified by the deterrence of harm or, more broadly, by the promotion of social welfare."). Throughout this Article, I use the terms " consequentialist" and "utilitarian" more or less interchangeably, not because I fail to appreciate the possibility that a theory could be based upon consequences other than welfare maximization, but rather because the distinction is generally not relevant to the particular lines of reasoning I discuss.
5. Aaron J. Rappaport, Rationalizing the Commission: The Philosophical Premises of 'the U.S. Sentencing Guidelines, 52 EMORY L.J. 557, 568 (2003) ("The second great moral tradition is sometimes called a 'deontological' theory or, more commonly, a theory of'retribution.' This moral tradition rejects the idea that punishment can be justified based on its consequences for society. Rather, and speaking roughly for now, punishment is justified based on some inherent moral quality of the act or actor himself.").
6. See Michael Philips, The Justification of Punishment and the Justification of Political Authority, 5 LAW & PHIL. 393, 393-394 (1986) ("[T]he theory of punishment is importantly connected with the theory of state authority.").
7. See William Powers, On the Priority of Justice, 63 TEX. L. REV. 1569, 1569 (1985) (reviewing MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JusncE(1982))("Deontological liberalism is a position associated with the works of Immanuel Kant and John Rawls. ");
8. seen also JOHN RAWLS, A THEORY OF JUSTICE (1971);
9. JOHN RAWLS, POLITICAL LIBERALISM (1993).
10. See Huigens, supra note 4, at 954-955 ("Deterrence theories of punishment have a strong affinity with the economic analysis of law, because neoclassical economics is a variety of consequentialism.").
11. See Geoffrey Miller, Tribute to Judge Richard A. Posner, 61 N.Y.U. ANN. SURV. AM. L. 13, 13 (2005) (stating that law and economics is "arguably, the most important development in legal scholarship in the last hundred years").
12. See, e.g.,TRACEY L. MEARES & DAN M. KAHAN, URGENT TlMES: POUCING AND RlGHTS IN INNER-CITY COMMUNITIES (1999);
13. Tracey L. Meares, Neal Katyal & Dan M. Kahan, Updating the Study of Punishment, 56 STAN. L. REV. 1171 (2004).
14. George P. Fletcher, The Nature and Function of Criminal Theory, 88 CAL. L. REV. 687, 689 ("Today, we take the debate between Kant's retributivism and Bentham's utilitarianism to be paradigmatic of the style of intellectual confrontation that has induced philosophical reflection on every factor bearing on the question whether we should punish a particular individual on a particular occasion.").
15. See Daniel McDermott, The Permissibility of Punishment, 20 LAW & PHIL. 403,425 (2001) ("The problem of matching crime with punishment has occupied philosophers for centuries. ").
16. See THOMAS HOBBES, LEVIATHAN (Edwin Curley ed., Hackett Publ'g Co. 1994)(1668);
17. JOHN LOCKE, SECOND TREATISE OF GOVERNMENT (C.B. Macpherson ed., Hackett Publ'g Co. 1980) (1690).
18. Laurie Stearns, Comment, Copy Wrong: Plagiarism, Process, Property, and the Law, 80 CAL. L. REV. 513, 540 (1992) ("Some political philosophers-most notably Hobbes, Locke, and Rousseau-have theorized that societies are based on an implicit 'social contract' in which people come together in communities to gain the benefits of safety, security, and support, and in exchange relinquish their freedom to behave exactly as they choose.").
19. See Kyron Huigens, Virtue and Inculpation, 108 HARV. L. REV. 1423, 1425 (1995) ("The law has a purpose, an end in view, which is to promote the greater good of humanity.").
20. McDermott, supra note 12, at 403 ("Punishment is morally troubling because it almost always causes human suffering. Indeed, some have argued that in order for a particular form of treatment to be considered punishment it must cause suffering." (emphasis in original)).
21. See Kyron Huigens, The Jurisprudence of Punishment, 48 WM. & MARY L. REV. 1793, 1797 (2007) ("It may be that conditioning punishment on individual desert produces optimal social welfare, simply because most people believe, rationally or not, that this is how punishment should be done, and because they would withhold necessary political support for the legal system if it were done otherwise.").
22. See Sharon Dolovich, Legitimate Punishment in Liberal Democracy, 1 BUFF. CRIM. L. REV. 307, 310 (2004) ("Any theory of state punishment in a liberal democracy must grapple with the problem of political legitimacy. The punishment of criminal offenders can involve the infliction of extended deprivations of liberty, ongoing hardship and humiliation, and even death.").
23. See Steven Sverdlik, Punishment, 7 LAW & PHIL. 179, 179 (1988) ("The debate about the justification of punishment appears to have no end.").
24. Steven Eisenstat, Revenge, Justice and Law: Recognizing the Victim's Desire for Vengeance as a Justification for Punishment, 50 WAYNE L. REV. 1115, 1162 (2004) ("Utilitarians are forward looking; they countenance punishment only if a social good will come from it");
25. see also Erik Luna, Punishment Theory, Holism, and the Procedural Conception of Restorative Justice, 2003 UTAH L. REV. 205,209 ("Whatever goal is espoused, utilitarian-based punishment is always forward-looking, seeking to reduce the intensity and gravity of crime in society. In other words, utilitarianism takes the position that 'bygones are bygones' and that future consequences should be the sole guide for sanctioning decisions."
26. (quoting John Rawls, Two Concepts of Rules, 64 PHIL. REV. 3, 5 (1955)).
27. Youngjae Lee, The Constitutional Right Against Excessive Punishment, 91 VA.L.REV. 677,737-738 (2005) ("As is well-known, the utilitarian theory of punishment subscribes to the notion that the issue of whether someone should be punished, and in what way, should be considered in terms of the consequences that the punishment would bring for the overall good of the society. The purpose of punishment, under this view, is not to give each criminal what he or she deserves, but to deter future crimes, to incapacitate criminals by keeping them 'off the streets,' or to rehabilitate criminals so they would become better citizens.").
28. Mary Sigler, Just Deserts, Prison Rape, and the Pleasing Fiction of Guideline Sentencing, 38 ARIZ. ST. L.J. 561, 563 (2006) ("Retributivism, by contrast, is centrally concerned with the imposition of suffering in proportion to an offender's moral desert. On this view, punishment of the deserving is intrinsically good; its justification does not depend on any further positive consequences that punishment might be expected to produce.").
29. Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV. 1659, 1663 (1992) ("[R]etributive justice is concerned with wrongful actions from which such harms result. Although a punishment may sometimes involve the wrongdoer compensating her victim in some way, the purpose of punishment is not to compensate the person for the harm suffered, but 'to right the wrong.'" (emphasis omitted)).
30. See Huigens, supra note 4, at 953 ("Retributivism takes punishment to be required by a kind of fitness in retrospect-a matter of balance or proportion between past and future.").
31. Sigler, supra note 22, at 563 ("Although a retributivist will welcome the positive consequences that punishment may incidentally yield-for example, crime prevention or character reformation-they are not part of the justification for punishment. Thus, a 'retributivist punishes because, and only because, the offender deserves it '"
32. (quoting Michael S. Moore, The Moral Worth of Retribution, in PUNISHMENT AND REHABILITATION 94 (Jeffrie G. Murphy ed., 1995)) (emphasis omitted)).
33. See Paul G. Cassell, Too Severe?: A Defense of the Federal Sentencing Guidelines (and a Critique of Federal Mandatory Minimums), 56 STAN. L. REV. 1017, 1021 (2004) ("Just punishment is a justification that is anchored in the past. As articulated by two leading proponents, a just punishment 'gives an offender what he or she deserves for a past crimes [sic] [as] a valuable end in itself and needs no further justification.'"
34. (quoting Paul H. Robinson & John M. Darley, The Utility of Desert, 91 Nw. U. L. REV. 453, 454 (1997)) (alteration in original)).
35. See Paul H. Robinson & John M. Darley, The Utility of Desert, 91 Nw. U. L. REV. 453, 454 (1997) ("The arguments of [the retributivist and utilitarian views] are generally considered irreconcilable. ").
36. Cf. Merle, supra note 3, at 311 ("[I]t is with good reason that such a [deontological] theory has been suspected of relying more on private morality than on principles of right").
37. Cf. Luna, supra note 20, at 221 ("More importantly, critics chastise retributivism as being wholly indifferent to the causes of crime and the consequences of punishment Retribution largely ignores the causal roots of offending, preferring to place the full weight of condemnation on the offender-although most scholars recognize that 'the problem of crime cannot be simplified to the problem of the criminal.'"
38. (quoting LESLIE T. WILKINS, CRIME AND MARKET FORCES 312 (1991))).
39. See id.
40. See Robinson & Darley, supra note 27, at 454 ("Punishment that gives an offender what he or she deserves for a past crime is a valuable end in itself and needs no further justification (such as a showing of a future benefit). This is typically referred to as the 'retributivist' or 'just deserts' view.").
41. Norval Morris, The Future of Imprisonment: Toward a Punitive Philosophy, 11 MICH. L. REV. 1161, 1173 (1974) ('To use the innocent as a vehicle for general deterrence would be seen by all as unjust, although it need not be ineffective if the innocence of the punished is concealed from the threatened group.").
42. See John M. Darley, Kevin M. Carlsmith & Paul H. Robinson, Incapacitation and Just Deserts as Motives for Punishment, 24 LAW & HUM. BEHAV. 659, 660 (2000) ("In the late 18th century, Immannal [sic] Kant argued that punishment ought to be 'pronounced over all criminals proportionate to their internal wickedness.'"
43. (quoting Immanuel Kant, The Science of Right, reprinted in 42 GREAT BOOKS OF THE WESTERN WORLD 402, 447 (W. Hastie trans., 1 st ed. 1952))).
44. See, e.g., Lawrence Crocker, The Upper Limit of Just Punishment, 41 EMORY LJ. 1059, 1062 & n.8 (1992).
45. Mitchell N. Berman, Punishment and Justification, 118 ETHICS 258, 258-59, 287 (2008).
46. Id. at 259.
47. Id.
48. See, e.g., Luna, supra note 20, at 242 ("In a winner-take-all philosophical world, it is either utilitarianism or retributivism-there is no space for compromise on the theoretical highground. Mixed theories are mere pretenders to the throne, with a close analysis revealing a halfhearted allegiance to one or the other theory, thereby exposing the hybrid to standard criticism by the opposing camp and ostracism from the pure theory as an ill-conceived child.").
49. See id. at 205 ("Punishment theories brutalize one another, staking out turf on principle and refusing to budge from their respective positions. As a result, the various theoretical camps spend most of their time on three endeavors: demonstrating the superiority of their approach to criminal sanctioning, subjecting all other theories to harsh criticism, and repairing the damage done to their own theory from equally severe attacks. The upshot is an unwinnable war of critiques within an ethos of mutual exclusivity. It is either one theory or another, but certainly not both.").
50. See Philips, supra note 6, at 394 ("[A] good deal of the discussion of punishment consists in exchanges of intuitions between deterrence theorists and retributive theorists that leave each side unconvinced.").
51. Berman, supra note 35, at 259.
52. Id.
53. See infra Part II.
54. See infra Part III.
55. See infra Part II.A.
56. See Richard Dagger, Playing Fair with Punishment, 103 ETHICS 473, 476 (1993) ("Punishment is justified, ceteris paribus, because the persons who disobey the law fail to meet their obligations to the other members of society.").
57. See Kevin M. Carlsmith, John M. Darley & Paul H. Robinson, Why Do We Punish? Deterrence and Just Deserts as Motives for Punishment, 83 J. PERSONALITY & Soc. PSYCHOL. 284,284 (2002) ("[The utilitarian perspective] holds that social harmony is best served by the prevention of future harm and that the justification for punishment lies in its ability to minimize the likelihood of future transgressions.").
58. See H.L.A. HART, Prolegomenon to the Principles of Punishment, in PUNISHMENT AND RESPONSIBILITY 1, 3 (1968) ("[W]e should bear in mind that in this, as in most other social institutions, the pursuit of one aim may be qualified by or provide an opportunity, not to be missed, for the pursuit of others.").
59. Paul H. Robinson, The Role of Moral Philosophers in the Competition Between Deontological and Empirical Desert, 48 Wm. & MARY L. REV. 1831, 1832 (2007) (stating that each side of the debate on punishment justification theory "has plausible arguments to make").
60. Berman, supra note 35, at 259.
61. TED HONDERICH, PUNISHMENT: THE SUPPOSED JUSTIFICATIONS 142-143 (1969) ("Our fundamental and final concern, obviously, must be with the question of what justification can be given for the practice of punishment taken as a whole. It seems to me clear, although it is sometimes doubted, that this is a satisfactory formulation of the problem which all theories of punishment attempt to answer." (emphasis in original)).
62. See HART, supra note 48, at 9.
63. Id.
64. See Sverdlik, supra note 19, at 180 ("In many ways the contemporary discussion of punishment centers on the well-known essay of H.L.A. Hart, 'Prolegomenon to the Principles of Punishment.'");
65. see abo Dagger, supra note 46, at 474 ("If we want to provide a justification for legal punishment, then, we must answer two distinct questions: (1) What justifies punishment as a social practice? and (2) What justifies punishing particular persons?" (emphasis in original)).
66. See Russell L. Christopher, Deterring Retributivism: The Injustice of "Just" Punishment, 96 Nw. U. L. REV. 843, 868 (2002) ("For Hart, the General Justifying Aim of our institutional practice of punishment is the beneficial consequences that punishment generates.").
67. See HART, supra note 48, at 9 ("Much confusing shadow-fighting between utilitarians and their opponents may be avoided if it is recognized that it is perfectly consistent to assert both that the General Justifying Aim of the practice of punishment is its beneficial consequences and that the pursuit of this General Aim should be qualified or restricted out of deference to principles of Distribution which require that punishment should be only of an offender for an offence." (emphasis in original)).
68. Christopher, supra note 55, at 868-869 ("As to who should be punished, the Distribution question should be answered by retributivism - 'only an offender for an offence.' Under Hart's mixed theory, the justification for why punishment may be imposed in general is answered by the aim of deterrence and the question of who should be punished is answered partly by deterrence and partly by negative retributivism. An offender may only be punished if he is guilty and if deterrence could be promoted." (quoting HART, supra note 48, at 8)).
69. See IGOR PRIMORATZ, JUSTIFYING LEGAL PUNISHMENT 112 (1989) ("When philosophers set out to bridge a gap, to combine theories which seem to be mutually opposed and even irreconcilable, usually the first thing they do is introduce a distinction. This has been the case in all important attempts at a middle-of-the-road philosophy of punishment. All the attempts have proceeded from a distinction supposedly overlooked, or at least not fully appreciated, in the preceding debate. ").
70. Dagger, supra note 46, at 473 (stating that "[p]unishment remains the center of an equally lively debate" even after Hart's work).
71. Crocker, supra note 34, at 1062 ("[My theory] is very similar to the theory of punishment long championed by Norval Morris.").
72. See infra Part III.
73. NORVAL MORRIS, MADNESS AND THE CRIMINAL LAW 149-60 (1982) [hereinafter MORRIS, MADNESS];
74. NORVAL MORRIS, THE FUTURE OF IMPRISONMENT 58-84(1974)[hereinafter MORRIS, IMPRISONMENT];
75. Crocker, supra note 34;
76. Norval Morris, Punishment, Desert and Rehabilitation, in EQUAL JUSTICE UNDER LAW: U.S. DEP'T OF JUSTICE BICENTENNIAL LECTURE SERIES 136,139-40 (1977) [hereinafter Morris, Punishment].
77. Morris, Punishment, supra note 62, at 140 ("No sanction should be imposed greater than that which is 'deserved'. Nor should a sanction be imposed which is so lenient that it unduly depreciates the seriousness of the crime.").
78. See, e.g., MORRIS, IMPRISONMENT, supra note 62, at 60; Crocker, supra note 34, at 1078.
79. Crocker, supra note 34, at 1078.
80. Id. at 1062 n.4 ("[T]his Article's treatment of the key matter of the upper limit is in considerable conflict with that of Morris."). Compare id. at 1065 (arguing that "the offender forfeits immunity to criminal punishment in an amount" equal to that which "the offender has imposed upon society," and that "[a]ny penalty that is too severe to be countenanced under [this equivalence approach] is unjustly severe-however laudable its consequences"), with MORRIS, MADNESS, supra note 62, at 179 ("'[A] deserved punishment'. does not mean the infliction on the criminal offender of a pain precisely equivalent to that which he has inflicted on his victim; it means rather a 'not undeserved punishment which bears a proportional relationship in a hierarchy of punishments to the harm for which the criminal has been convicted.'").
81. Berman, supra note 35, at 259-260
82. Id. at 261-262
83. Id.
84. Id. at 262 & n.14 ("Eliminating degenerate cases from the scope of'punishment' is a stipulation designed to simplify exposition, on the assumption that most commentators are agreed that [punishment in mese cases] is not justifiable.").
85. Id. at 281-284
86. Id.
87. This reshaping is conceived as distinct from traditional rights-forfeiture accounts. See id.
88. IA. Id. at 283.
89. See Carl Emigholz, Note, Utilitarianism, Retributivism and the White Collar-Drug Crime Sentencing Disparity: Toward a Unified Theory of Enforcement, 58 RUTGERS L. REV. 583, 599 (2006) ("[U]tilitarian punishment theory seeks to minimize pain (societal costs) while maximizing pleasure (societal benefits), and rationalizes the behavior of would-be criminals.'').
90. See Michael Tonry, The Functions of Sentencing and Sentencing Reform, 58 STAN. L. REV. 37, 52 (2005) ("The preventive functions center on the collective interest in domestic tranquility, on enabling citizens to get on with their lives in security. These are core functions of the state and basic goals of the criminal law and punishment").
91. Dagger, supra note 46, at 475 ("With the aid of the institution of punishment, however, we can provide a guarantee that 'those who would voluntarily obey shall not be sacrificed to those who would not'" (quoting H.L.A. HART, THE CONCEPT OF LAW 198 (1961))).
92. See James Q. Whitman, A Plea Against Retributivism, 7 BUFF. CRIM. L. REV. 85, 89 (2003) ("But [retributivism] does often seem weirdly blind to the nasty realities of the American world around it, with its otherworldly discussions of abstractly conceived autonomous actors.").
93. Gerard V. Bradley, Retribution: The Central Aim of Punishment, 27 HARV. J.L. & PuB. POL'Y19,27-28 (2003) ("Where retribution forms the moral justification for punishment, the problem of punishing the innocent is resolved simply and satisfactorily. Other theories cannot answer this conundrum so readily.").
94. See John Steele, A Seal Pressed in the Hot Wax of Vengeance: A Girardian Understanding of Expressive Punishment, 16 J.L. & RELIGION 35,36 (2001) ("Consequentialist accounts have their own problems. If we abandon the search for a moral fit between crime and punishment, and instead measure out hard treatment by calculating the positive effects flowing from a particular punishment, we may entertain the punishment of the innocent and the cruel and excessive punishment of the guilty.");
95. see also Huigens, supra note 17, at 1797 ("'The question is whether utilitarian arguments may be found to justify institutions. such as one would find cruel and arbitrary.'"
96. (quoting John Rawls, Two Concepts of Punishment, 64 PHIL. REV. 3, 10 (1955))).
97. Luna, supra note 20, at 215 ("Utilitarianism does not reject outright the concept of punishing the blameless. If imprisoning or even executing an innocent person increases social utility through heightened feelings of public security, for instance, there is nothing about utilitarianism that would prevent the creation of a scapegoat." (citation omitted)).
98. Sverdlik, supra note 19, at 193 ("Utilitarians sometimes offer a counterthrust to the criticism that their theory would (or could) lead to the punishment of the innocent They ask what is so wrong, after all, in such punishment? Life in our society often involves placing burdens on innocent people. The utilitarian, in other words, can ask his or her critics to specify what is wrong with punishing the innocent that would not also make, for example, taxation for public purposes wrong.").
99. HYMAN GROSS, ATHEORYOFCRIMINAL JUSTICE414(1979) ("Condemning one who is blameless is universally abhorred as an injustice. ").
100. Cf. Lloyd L. Weinreb, Desert, Punishment, and Criminal Responsibility, 49 LAW & CONTEMP. PROBS. 47, 47 (1986) ("[U]tilitarians proffer elaborate arguments to show the instrumental value of punishing the guilty and only them; but tacitly or even explicitly, the real proof of the correctness of their arguments is that the results are consistent with considerations of desert, which is enough to undermine the conclusion the arguments are intended to support.").
101. See JOHN STUART MILL, UTILITARIANISM (George Sher ed., Hackett Publ'g 2001) (1863).
102. Cf. Daniel R. Williams, Commentary, The Futile Debate over the Morality of the Death Penalty: A Critical Commentary on the Steiker and Sunstein-Vermeule Debate, 10 LEWIS & CLARK L. REV. 625, 627 (2006) (defining a rule-utilitarian as "a person who focuses on the utility of adhering consistently to a rule rather than evaluating a particular act through that act's perceived utility in maximizing the aggregate good").
103. Eric Blumenson, The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court, 44 COLUM. J. TRANSNAT'L L. 801, 835 (2006) (stating that there is an "overwhelming moral truth that it is unjust to punish the innocent").
104. See Huigens, supra note 4, at 945 ("Fault-also known as desert, culpability, or blameworthiness-is the distinctive feature of the criminal law, but consequentialism has no independently viable conception of fault" (citations omitted)).
105. We may assume for the sake of the example that the punishment does not seem unfairly severe or disproportionate to the crime.
106. It is possible that the harm to the innocent would be greater because her innocence itself would make the punishment harder to bear. But this does not undermine the point The main reason we would rather punish the guilty than the innocent is not that the innocent might experience more disutility from the punishment, but rather that the innocent does not deserve to be punished.
107. See Christopher, supra note 55, at 848 ("Consequentialist theories justify punishment not on the desert due the offender but on the actual, good consequences that are attained, for example, deterrence of crime, incapacitation of the offender, and rehabilitation of the offender.").
108. Id. (stating that retributivism has its "roots in vengeance, bloodlust, revenge, retaliation, and an eye for an eye").
109. See McDermott, supra note 12, at 407 ("Retributivists claim that punishment is morally permissible because wrongdoers have committed crimes-it is the fact of crime itself that changes wrongdoers' moral boundaries such that treatment that is normally morally impermissible becomes permissible." (emphasis in original)).
110. See Jeffrie G. Murphy, Marxism and Retribution, in A READER ON PUNISHMENT 47,49 (R.A. Duff & David Garland eds., 1994) ("Since we do not always have the right to do what it would be good to do, this distinction is of the greatest moral importance; and missing the distinction is the Achilles heel of all forms of Utilitarianism. This kind of distinction is elementary, and any theory which misses it is morally degenerate.").
111. Christopher, supra note 55, at 856 ("The most well-known version of consequentialism is Jeremy Bentham's utilitarianism in which a course of conduct is evaluated by the principle of utility or the amount of happiness and suffering that is generated by the conduct.").
112. Jason Lloyd, Note, Let There Be Justice: A Thomistic Assessment ofUtilitarianism and Libertarianism, 8 TEX. REV. L. & POL. 229, 231 (2003) ("In Bentham's system, therefore, the only standard of justice is pleasure and the object of law is the maximization of pleasure.").
113. Virginia Dailey, Sustainable Development: Reevaluating the Trade vs. Turtles Conflict at the WTO, 9 J. TRANSNAT'L L. & POL'Y 331, 356 (2000) ("According to Kant, moral obligations are rooted in human nature; morality is found in the act itself, without regard to a cost-benefit analysis.").
114. See Huigens, supra note 4, at 953-955 ("The principal shortcoming of the retributive theory is that the source and scope of the duty to punish is not clear. The deterrence theory of punishment arguably does not suffer from these burdens because it rests on a less abstract ethical theory: consequentialism. Under consequentialist ethics, punishment is justified by the deterrence of harm or, more broadly, by the promotion of social welfare." (citation omitted)).
115. Cf. McDermott, supra note 12, at 405 ("Demonstrating that retributive punishment is morally permissible will mus require an explanation of the relationship between acts of wrongdoing, the wrongdoers' altered moral boundaries, and the specific punishments we wish to inflict.").
116. IMMANUEL KANT, THE MORAL LAW: GROUNDWORK OF THE METAPHYSIC OF MORALS 70 (H.J. Paton ed. & trans., Hutchinson & Co. 1964) (1785).
117. E.g., CHRISTINE M. KORSGAARD, CREATING THE KINGDOM OF ENDS (1996).
118. - 2 JEREMY BENTHAM, Anarchical Fallacies: Being an Examination of the Declarations of Rights Issued During the French Revolution, reprinted in THE WORKS OF JEREMY BENTHAM 489,501 (John Bowring ed., Russell & Russell, Inc. 1962) (1843).
119. See Steven G. Medema, Sidgwick's Utilitarian Analysis of Law: A Bridge from Bentham to Becker?, 9 AM. L. & ECON. REV. 30, 31 (2007) ("Here, Bentham laid out several ideas that are reflected in the modern economic analysis of criminal law, including. the social benefit-cost analysis of punishment. ").
120. See David Dolinko, Retributivism, Consequentialism, and the Intrinsic Goodness of Punishment, 16 LAW & PHIL. 507, 520 (1997) ("Happiness. is widely believed to be intrinsically good.").
121. Cf. id. at 519 ("[C]onsequentialists who believe that there is only one intrinsic good whether it be happiness, utility, preference-satisfaction, or something else - would presumably assert that there is a duty to bring about, and indeed to maximize, the level (whether average or aggregate) of this intrinsic good." (emphasis in original)).
122. See Weinreb, supra note 84, at 52 ("There is a relationship between responsibility and punishment, mediated by the idea of desert, which requires no additional argument").
123. See Mirko Bagaric & Kumar Amarasekara, The Errors of Retributivism, 24 MELB. U. L. REV. 124,133 (2000) ("[Utilitarianism fails to protect basic individual rights and interests, and since it does not prohibit anything per se, [it] may lead to horrendous outcomes.")-
124. The right of the people to make laws prohibiting harmless behavior, and to enforce those laws by punishment, is a fascinating and widely discussed topic that is well beyond the scope of this Article. See generally A JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING (1988).
125. See Lawrence B. Solum, Procedural Justice, 78 S. CAL. L. REV. 181, 188 (2004) ("One might easily imagine that the role of a system of criminal procedure is to impose just punishments and that direct application of the coercive power of the state is the necessary and sufficient means to this end.").
126. I have mentioned earlier that it might be acceptable to punish the innocent in extreme cases such as the need to save millions of lives. The implications of this sort of caveat are generally beyond the scope of this Article, but I note here that my sentence in the text is not meant to rule out punishment in such a hypothetical example. I do not think this means that utilitarianism supplies part of the reason the state has a right to punish, at least in the vast majority of the cases that actually arise.
127. HONDERICH, supra note 51, at 152 ("We wish to protect society, reform criminals, deter others. These ends or purposes are 'morally and socially desirable' but they should not be confused with the moral justification of punishment. The moral justification of the practice is that it is deserved.").
128. See Cassell, supra note 26, at 1031 ("[P]unishment should be 'optimal' in the sense that its benefits outweigh its costs.")
129. See Lee, supra note 21, at 738 ("The purpose of punishment, under [the utilitarian] view, is not to give each criminal what he or she deserves, but to deter future crimes, to incapacitate criminals by keeping them 'off the streets,' or to rehabilitate criminals so they would become better citizens.").
130. See Dan M. Kahan, The Secret Ambition of Deterrence, 113 HARV. L. REV. 413,420 (1999) ("The meanings of wrongdoing and punishment, moreover, are related: the condemning retort of punishment signals society's commitment to the values that the wrongdoer's act denies.").
131. See generally Jean Hampton, The Moral Education Theory of Punishment, 13 PHIL. & PUB. AFF. 208 (1984).
132. See Kenworthey Bilz, The Effect of Crime and Punishment on Social Standing (Sept. 2006) (unpublished Ph.D. dissertation, Princeton University) (on file with author).
133. Id.
134. See id.
135. Jens David Ohlin, Applying the Death Penalty to Crimes of Genocide, 99 AM. J. INT'L L. 747, 768 (2005) ("Under [the expressive] theory, the institution of punishment serves to express society's disapproval of a criminal act.").
136. See Jennifer M. Collins, Crime and Parenthood: The Uneasy Case for Prosecuting Negligent Parents, 100 Nw. U. L. REV. 807, 838 (2006) ("Punishment is, therefore, 'inflicted to nullify the wrongdoer's message of superiority over the victim, thus placing the victim in the position she would have been in if the wrongdoer had not acted.' Thus, 'retribution is actually a form of compensation to the victim.'" (quoting Hampton, supra note 23, at 1698)).
137. H.L.A. HART, Postscript: Responsibility and Retribution, in PUNISHMENT AND RESPONSIBILITY 210, 232 (1968) (stating that one feature required by Kantian retributivism is that punishment of an offender is "obligatory, even on the eve of a dissolution of a society against whose laws the person to be punished has offended").
138. See IMMANUEL KANT, THE METAPHYSICS OF MORALS 106 (Mary Gregor ed. & trans., Cambridge Univ. Press 1996) (1785) ("Even if a civil society were to be dissolved by the consent of all of its members (e.g., if a people inhabiting an island decided to separate and disperse throughout the world), the last murderer remaining in prison would first have to be executed, so that each has done to him what his deeds deserve and blood guilt does not cling to the people for not having insisted upon his punishment; for otherwise the people can be regarded as collaborates [sic] in this public violation of justice.").
139. HART, supra note 121, at 231 (stating that for a retributivist, the justification of punishment is "that the return of suffering for moral evil voluntary [sic] done, is itself just or morally good").
140. See KANT, supra note 100, at 101 ("For rational beings all stand under the law that each of them should treat himself and all others, never merely as a means, but always at the same time as an end in himself." (emphasis in original)).
141. IMMANUEL KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE 138 (John Ladd trans., Hackett Publ'g 2d ed. 1999) ("Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society." (emphasis added)).
142. E.g., Herbert Morris, Persons and Punishment, 52 MONIST 475 (1968).
143. See generally Brian Leiter, Morality Critics, in OXFORD HANDBOOK OF CONTINENTAL PHILOSOPHY 711, 711 (2007) ("Popular, including religious, thinking has long proceeded on the assumption that 'morality' as a system of norms deserves our allegiance and that 'moral conduct' should earn our praise and admiration.").
144. See KORSGAARD, supra note 101.
145. See Dolovich, supra note 18, at 314-315 ("Rawls argues that political power is legitimately exercised by the state over its citizens only when it is exercised on the basis of a collective agreement 'the essentials of which all citizens may reasonably be expected to endorse' under fair deliberative conditions.").
146. See Morris, supra note 126, at 476-478
147. Id.
148. See Dagger, supra note 46, at 474 (arguing that the principle of fair play should play a central role in the discussions of the justification of punishment).
149. See Dolinko, supra note 104, at 509 ("A deontological retributivist. takes punishing the guilty to be obligatory on each particular occasion.").
150. See id. at 526 ('"[A] person's desert of X is always a reason for giving X to him, but not always a conclusive reason, [because] considerations irrelevant to his desert can have overriding cogency in establishing how he ought to be treated on balance.'"
151. (quoting JOEL FEINBERG, Justice and Political Desert, in DOING AND DESERVING 55, 60 (1970)) (alteration in original)).