The title of this review should begin, “It should go without saying.” Unfortunately, given a spate of recent fashionable criticisms of retributivism—by Martha Nussbaum, Vincent Chiao, Erin Kelly, and others—the thesis defended in Dr. Leora Dahan Katz’s article needs saying and defending. That thesis is that there is no theoretical incompatibility between commitment to a retributive justification of punishment and promoting human welfare; and there is no evidence (at least, none provided by antiretributivists) of an empirical incompatibility in adopting a retributive rationale for punishment and yet trying to promote (albeit not to maximize) human welfare (e.g., by addressing human needs before criminal conduct occurs, educating about sexual assault, or, I would add, showing mercy or compassionate release under unusual circumstances). There is yet no reason proffered to think that the retributive theory of punishment needs replacing by a welfare-oriented one.
Dahan Katz carefully disentangles various arguments contrary to her thesis: causal, psychological, conceptual. She refutes, with particular precision and philosophical sophistication, an axiological argument to the effect that retributivism is committed to viewing human suffering as having intrinsic, not merely instrumental, value, and that this is incompatible with a welfare orientation. Her refutation involves what is, given the antiretributivist literature, a much-needed reminder about the precise contentions underlying various forms of retributivism.
As Dahan Katz notes, retributivism has the resources to denounce mass incarcerations (except in the theoretically possible case in which all incarcerated persons deserve their incarceration) and excessive (understood as retributively unjust) and degrading punishment. Retributivism,Dahan Katz further notes, provides no obstacle to objecting to (and no reason for) racial discrimination in sentencing and many of its ill effects. Most forms of retributivism license, but do not require, punishing those who deserve punishment. Desert is treated by these theories as a pro tanto consideration, rather than one that excludes considerations of exploitation of the deserving guilty, (the distributive injustice of) discrimination among the set of convicted and deserving guilty, and so on.
Admittedly, in practice, the moral duty to discover the facts determining whether and how much a given individual deserves punishment can be exceedingly difficult to fulfill, even if those who sentence are trying to assess desert in good faith. (In this connection, though Dahan Katz does not make this point, it is worth reminding the reader that just desert is morally nuanced, embracing many considerations besides justifications, such as lack of maturity and a host of other mitigating factors.) So, one might think, maybe sentencing juries and judges (and legislatures enacting mandatory sentences) ignorantly overreact, and this gives us a reason to jettison retributive rhetoric in our society.
But Dahan Katz makes the case that, if blame is to be laid for the perceived excesses of the American criminal “justice” system, as some of these authors wish to do, it cannot be fairly laid at the feet of retributive theory, embraced largely by academics but not much outside academic circles. There is also (and more plausibly?), Dahan Katz points out, the appeal to the dangerousness of criminals (and, I would add, appeals to fear and prejudice) by decades of political calculators. Appealing to dangerousness is comfortably compatible with a consequentialist rationale for punishment—one that alleges that human welfare (in the aggregate) is best served by deterring and incapacitating the dangerous among us, under some circumstances with extreme measures. This is a welfare orientation that some—perhaps all?—of Dahan Katz’s opponents would not willingly embrace.
