Rescuing Retributivism

Ramzi Nasser, Federal Defender's of San Diego

ABSTRACT
Immanuel Kant is often referred to as a retribituvist which means he believes the purpose of punishment is to give a wrongdoer her just deserts. The purpose of my paper is to show why retributivism sets forth a fair system of punishment, that is not, in theory at least, cruel or in violation of individual rights. First, I set forth Kant's theory of punishment. Next, I explain using some examples I have come across in my employment as a federal defender, as well as using some examples Kant gives, why I believe retributivism is a just way of looking at the criminal law. Mostly, I'll discuss how retributivism places limits on the amount and kind of punishment an individual can be subject to-limits that do not exist in other theories of punishment, such as rehabilitation or deterrence. As a prima facia matter, if I force a person into a prison cell or kill a person, I have violated that person's freedom. In the Doctrine of Right, Kant explains why the state may treat a citizen in such a manner if the citizen is being punished for a wrong. We punish citizens because, in certain instances, it is the duty of the state to see that an offender is given her just desert for an immoral act. In his Lectures on Ethics at Albertina University during the 1793-94 school year, Kant explains that "We think it quite contrary to the order of things that a morally bad action should by its nature be coupled with impunity_the judicial office, by virtue of its lawgiving power, is called upon by reason to repay, to visit a proportionate evil upon the transgression of moral laws." Similarly, in the Doctrine of Right, Kant states that punishment can be inflicted on an individual "only because he has committed a crime." Kant goes on to state how a murderer is punished so that the state is assured that it has punished the murderer "as his deeds deserve." Thus, in the interest of achieving retributive justice, the state must be sure that each offender is sentenced "in proportion to his inner wickedness." Kant is clear that retributive justice, or the attainment of just deserts, is the sole goal and justification of punishment as opposed to being only one of many goals pursued when the state chooses to punish its citizens. All other positive benefits of punishment can only be secondary side effects. Kant warns in the Doctrine of Right that individuals can only be punished because they have committed a crime, and punishment can never be inflicted "merely as a means to promote some other good for the criminal himself or for civil society." Further, a criminal must be found "punishable, before any thought could be given to drawing from his punishment something of use for the criminal himself or for civil society." It seems, for example, that one could not decide to make an act punishable in hopes of deterring wrongdoing. In such a case, the purpose of the threatened and executed punishment would be the "good of society" as opposed to retribution for a crime. And if we punish citizens with some other end in mind, we will be treating the offender "merely as a means to promote some other good." This would be impermissible because the offender's "innate personality protects him from this, even though he can be condemned to lose his civil personality." In sum, the state may punish only with the purpose of serving retributive justice, because such a system makes punishment of an individual an end in itself. There is value in the mere fact of punishment. If the state punishes for some other reason, such as deterrence, then the offender suffers as a means to achieve some other end, as opposed to the suffering serving as the purpose of the state action. The mot powerful thing about Kant's theory is the limit he places on the amount of punishment an individual may face. Because punishment is based on moral desert, Kant notes that an individual cannot be punished more than he morally deserves for his bad act. My paper goes through the example of a client of mine who continued to violate supervised release (the federal version of probation) by using methamphetamines and failing his court-mandated drug tests. Each time, the judge sentenced him to jail, followed by a drug rehabilitation program and more supervised release. Eventually, the client felt that is whole life had been taken over by the penal system. He had spent three years in and out of both jail and forced rehabilitation and there was no end in sight. I conclude that a retributive system would not allow a continued impingement on liberty that was out of proportion with the wrong the individual committed, whereas having a system of rehabilitation allows the penal system to indefinitely imprison an individuals like my client who will not refrain from using drugs. My paper also recounts the harsh sentences many of my clients face for illegally returning to the country. I note that these harsh penalties definitely deter many of my clients, some of whom tell me how the amount of punishment they were facing figured into their calculus when deciding to return. Nonetheless, I conclude that sentencing an individual to a hundred months for illegally entering the country, as often happens, is an unjust practice because the time the individual serves is disproportionate to his wrong.

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Updated 05/20/2006