Justice Without Retribution
Retributivism, mass incarceration, and free will skepticism
Posted December 14, 2015
In the criminal justice system, incarceration is often seen as being justified by the desert of offenders: because they are guilty—morally, and not merely legally, guilty—we can impose significant sanctions on them. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that he deserves something bad to happen to him just because he has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is not reducible to consequentialist considerations nor does it appeal to a good such as the safety of society or the moral improvement of the criminal in justifying punishment.
While there are many reasonable retributivists who acknowledge that we imprison far too many people, in far too harsh conditions, retributivism nonetheless remains committed to the core belief that criminals deserve to be punished and suffer for the harms they have caused. This retributive impulse in actual practice often leads to practices and policies that try to make life in prison as unpleasant as possible. It was this retributive impulse, for instance, that was recently behind the effort in England and Wales to create a blanket ban on sending books to prisoners. Luckily, the high court declared the book ban unlawful, reasoning that books are often essential to the rehabilitation of criminals. It is also this retributive impulse that has lead, at least in part, to the mass incarceration crisis in the United States.
The number of people incarcerated in the U.S. is staggering. With only five percent of the world’s population, the United States imprisons twenty-five percent of the world’s prisoners—far more than any other nation in the world. The U.S. imprisons more than 700 prisoners for every 100,000 people, whereas Scandinavian countries such as Sweden, Finland, and Norway hover around 70 per 100,000. And not only does the U.S. imprison at a much higher rate, it also imprisons in notoriously harsh conditions. American supermax prisons are often cruel places, using a number of harsh forms of punishment including extended solitary confinement. The watchdog organization Solitary Watch estimates that up to 80,000 people in the U.S. are currently in some form of solitary confinement. These prisoners are isolated in windowless, soundproof cubicles for 23 to 24 hours each day, sometimes for decades. Such excessively punitive punishment not only causes severe suffering and serious psychological problems, it does nothing to rehabilitate prisoners nor does it reduce the rate of recidivism. In fact, prisoners that are released into society following supermax conditions recidivate more compared to non-supermax prisoners and sooner compared to prisoners who left supermax 3 months or more before their release (see here). Furthermore, the US has one of the highest rates of recidivism in the world, with 76.6% of prisoners being rearrested within five years of release. Norway, by contrast, averages around 20%.
As Farah Focquaert and Adrian Raine write, "Although it is often argued that only incapacitation can offer adequate security, in today’s society, where prisons lack the necessary resources to provide adequate care and opportunities for rehabilitation, we need to admit that prison terms often aggravate recidivist behavior, and thus raise rather than diminish crime rates" (see here).
A new network of interdisciplinary researchers from law, philosophy, psychology, neuroscience, and criminal justice, called the Justice Without Retribution Network (JWRN), has recently been formed to investigate whether non-retributive approaches to punishment can adequately deal with criminal behavior and whether they would be preferable to our current system. The JWRN is a joint effort of the University of Aberdeen School of Law, which will house the network, Cornell University, Ghent University, and SUNY Corning and will be directed by Elizabeth Shaw, Derk Pereboom, Farah Focquaert, and myself (Gregg Caruso). The network will explore the practical implications of free will skepticism for the criminal justice system and it will consider whether non-retributive approaches to criminal behavior that do not rely on a traditional understanding of free will can be ethically defensible and practically workable.
Free will skepticism maintains that what we do, and the way we are, is ultimately the result of factors beyond our control and because of this we are never morally responsible for our actions in the basic desert sense—the sense that would make us truly deserving of praise and blame. One of the most frequently voiced criticisms of free will skepticism is that it is unable to adequately deal with criminal behavior since it is inconsistent with retributivism, the most prominent justification for punishing criminals. Free will skeptics, however, typically respond that the imposition of criminal sanctions serves purposes other than the punishment of the guilty: it can also be justified by its role in incapacitating, rehabilitating, and deterring offenders. My own public health-quarantine model (available here) is one example of a non-retributive approach to criminal behavior—one which I contend is sufficient for dealing with dangerous criminals, leads to a more humane and effective social policy, and is actually preferable to the harsh and often excessive forms of punishment that typically come with retributivism. Other free will skeptics—including Derk Pereboom, Michael Corrado, Neil Levy, and Benjamin Vilhauer—have developed their own non-retributive alternatives. One of the purposes of the JWRN will be to explore these various approaches to criminal behavior to see if they are ethically defensible and practically workable.
Over the next few years, the Justice Without Retribution Network will organize several conferences and events—including conferences at Cornell University (2016), Ghent University (2017), and the University of Aberdeen (2018) (see here)—as well as produce a number of publications. By bringing together leading researchers from different fields—including academics and policy makers, free will skeptics and defenders of retributivism—the network hopes to move the needle forward and give practice to theory. Perhaps, just perhaps, we will one day embrace the notion of justice without retribution.