Revising Wolff’s support for retribution in theories of punishment: desistance, rehabilitation, and accommodating individual and social accounts of responsibility

ABSTRACT

Jonathan Wolff supports retribution as a justification for punishment in his book Ethics and Public Policy: A Philosophical Enquiry, arguing that the victim’s status and self-respect has been undermined by a crime committed. Punishment responds to these ‘social violations’, with the criminal justice system acting as a ‘communicative mechanism’ to the offender and victim, restoring the status of the victim by punishing the offender. Consistent with Wolff’s ‘bottom-up’ methodological approach to applied ethics, this paper defends his conclusions supporting retribution, for certain crimes at least, but his position needs qualifying and supplementing. We mount a defence of retribution which, contrary to popular views, seeks to accommodate both individual and social accounts of responsibility. This accommodation is achieved by holding the individual offender responsible via retributive justifications of punishment, while also acknowledging the social responsibility of restoring the status of the offender given the social injustice experienced by many offenders, prior to their offending. Following this analysis, and a consideration of empirical studies concerning probation practice, we recommend the practice of desistance as most likely to help reduce re-offending, alongside the social responsibility of other state representatives and social institutions for building socio-economic capital for the offender.

KEYWORDS:

• Applied ethics
• desistance
• retribution
• social justice

Acknowledgements

The first draft of this paper was presented to The Howard League for Penal Reform’s conference ‘What is Justice? Reimagining Penal Policy’ held at the University of Oxford in September 2013. We would like to thank the participants at the conference for their insightful and valuable comments. The first draft was then revised for The Howard League for Penal Reform’s ‘What is Justice?’ working paper series, appearing in March 2014 on its website—see www.howardleague.org/what-is-justice—which is a much shorter and less developed version of this paper.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. The principle is formal as it does not define the substantive conception of ‘desert’ and ‘treatment’. It articulates the broader concept by which the principles of desert and treatment are applied however these may be specifically defined.

2. The fourth principle may seem problematic for retribution, as two people committing the same crime can receive different punishments. However, these excuses do not absolve the offender from individual responsibility and guilt, but may reduce the sentence implying merely the offender's reduced responsibility.

3. Morris's defence of what he called ‘minimal retribution’ is based on utilitarian arguments. In the context of us accommodating both individual and social accounts of responsibility, ‘minimal retribution’ must therefore imply that (a) the offender is responsible for the crime committed, and (b) the punishment is sufficiently adequate for the victim's status to be restored, but provided additional procedural mechanisms are put in place which are designed to support the victim (also see discussion below). Social accounts of responsibility and, by implication, principles of social justice are implemented in relation to the offender and are applied once the punishment is administered. That is, assuming the offender experiences multiple social and economic disadvantages prior to their offending, which they often do (and again see discussion below).

4. We exclude Victim Personal Statements (CPS 2015) from services that might restore the status of victims as these are part of the pre-sentence process, rather than any measure enacted as part of the punishment of an offender and any support of the victim post-sentencing.

5. Community Orders in the UK are requirements on the offender to fulfil certain obligations while living in the community, such as regular visits to a supervisory probation officer, engaging in unpaid work, completing drug rehabilitation and/or offending programmes, etc. Community Orders are intended to be tailored to the circumstances and behaviour of the individual offender to encourage non-offending.

6. See note above regarding Community Orders, and for a similar strategy, also see Daly (2000); and to a lesser extent, Morris (1977), Zehr (1990), Walgrave (2004). Also, contrast this with Brunk (2001); Honderich (2006) who regard retribution justifications of punishment as fundamentally opposed to restorative and rehabilitative principles of justice.

7. Most recently, Rocque (2015) illustrates the current diversity of desistance theory, arguing that it can be divided into three broad categories: pure age and biological theories; psychological and psychosocial theories; and social process or sociological theories (2015, 344–348). Most relevant to our arguments here is the latter category, relating behaviour and desistance to social ties, the development of social capital, and enhancing an individual's concern about society as a whole rather than only attending to ‘the self’.

8. Of course, much criminological theory is derived from sociology and social theory/philosophy (e.g. see Garland and Sparks 2000; Henry and Matsueda 2015). There is insufficient space to explore in detail this subject. Suffice it to say that whatever theoretical/philosophical framework is used we would argue that an account of social responsibility (as well as individual responsibility) needs to be articulated to make proper sense of justifications for punishment. For example, see Brooks (2012) defence of what he calls a ‘unified theory’. His theory is based on a Hegelian view which combines features of traditional justifications of punishment (including retribution associated with Hegel) to address issues of both criminal and social justice. His book, while philosophical in character, also examines empirical studies on crime and punishment in some depth. Our arguments here clearly have sympathy with Brook's general approach; and although Hegelian social theory is not the only social philosophy on offer, that Brooks uses Hegel to frame his ‘unified theory’ is consistent with our stress on the need to examine social relations thoroughly when accommodating individual and social accounts of responsibility. Moreover, that Hegel relies on an account of individual responsibility to justify retributive punishment, but also provides a sophisticated account of how the state and society relates to the individual to get beyond crude associations of retribution with revenge, is also consistent with our arguments here. For example, in Hegel's ‘Philosophy of Right’ he states: ‘Wherever crime is punished not as crimina pub-lica but as privata, it still has attached to it a remnant of revenge  … In that condition of society where there are no judges and no laws, punishment always takes the form of revenge. This is defective, as it is the act of a subjective will, and has an inadequate content’ (Hegel 2001, 102/para 102; also see Dyde 1898; Stillman 1976; Nicholson 1982; Conklin 2008). In this Hegelian understanding of retribution, then, understanding the wider social context and the particularised response of social systems to crime and deviance, is essential to providing a proper defence of retribution. Clearly, our argument follows a similar line.

9. We are grateful to one of the referees for clarifying our position in this way.

10. Here our position again contrasts sharply with Honderich 2006; and Brunk 2001—and see note above.