Legal Commentary

Now a chance to trumpet other people's work. Following up on my previous post, I want to point out that the "consequentialist retributivist" position I present there is not solely my own (though I do think my article provides an especially direct and thorough elaboration of it). Others have also advanced such a view, or strongly hinted at it, or at least have shared its critique of the competing retribution-as-deontological-duty view. For example, in this article (written at the same time as, and independently of mine), Mitch Berman expresses what I take to be a similar position in the end, though in a very different way and with different emphasis. Mark White confronts the same problem (how do we pursue retribution in a world of scarce resources?) in this piece, though his analysis and conclusions differ somewhat. (Interestingly enough, White's piece was also written around the same time, and independently of mine.) Doug Husak points out the need to balance retribution with other goals in this short piece (scroll down to page 991 of the volume). Last but certainly not least, noted Prawf Dan Markel presents a similar view on pages 2193-94 and 2212-13 of this article, among several other places.

Now my question: does anybody disagree?

First of all, it seems quite interesting to me that other several people were pursuing similar questions, and reaching compatible answers, at the same time I was. (I'm glad I didn't write a different article before getting to this one.)

More generally, though, I wonder if the retribution-as-duty view, long associated with retributivist thinking, still has any committed adherents. As my article discusses, even Michael Moore (as serious and sophisticated a retributivist as anyone) seems to have retreated from that view in his recent writing. I've also heard from criminal-law theorist Kim Ferzan about an informal conversation she had with some other retributivists, including, I think, Moore and Berman, and others I can't recall. The generally shared view seemed to be that while "negative" retributivism (avoiding punishment of the innocent) might be a duty, "positive" retribution (punishing the guilty) should probably be seen as something like a good.

That sounds more or less like an emerging consensus to me. I'm not sure I agree that even negative retributivism imposes a deontological duty: in some cases, it might be appropriate (though regrettable) to punish an innocent person for the sake of saving hundreds or thousands of other innocents. I think the easiest way to get to that result is to see it as a tradeoff of consequentialist goods and harms, but it might not be the only way; others (including Moore) seem to think a "threshold" understanding of duties can get to the same place. In any event, the bottom line is that there seems to be a lot more agreement than discord here.

Like many people, I'm in the habit of agreeing with myself. Often, though, I don't agree very strongly. Yet in this case, I do feel pretty strongly that "consequentialist retributivism" makes sense, and it seems others hold similar views too. Are we all just making a point that's clearly correct, even if previously obscure or unelaborated? Have the deontological retributivists left the building?