Originally published May 2004, Updated June 2013 by Sarah Cast and Heidi Burgess, and Current Implications added by Heidi Burgess in July 2020,
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What Retributive Justice Is
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Retributive Justice is a matter of giving people their just deserts. The central idea is that the offender has gained unfair advantages through his or her behavior, and that punishment will set this imbalance straight. |
Central to retributive justice are the notions of merit and desert. We think that people should receive what they deserve. This means that people who work hard deserve the fruits of their labor, while those who break the rules deserve to be punished. In addition, people deserve to be treated in the same way that they voluntarily choose to treat others.[1] If you behave well, you are entitled to good treatment from others.
Immanuel Kant uses a debt metaphor to discuss the notion of just desert. Citizens in a society enjoy the benefits of a rule of law. According to the principle of fair play, the loyal citizen must do their part in this system of reciprocal restraint. An individual who seeks the benefits of living under the rule of law without being willing to make the necessary sacrifices of self-restraint is a free rider. He or she has helped themself to unfair advantages, and the state needs to prevent this to preserve the rule of law.[2]
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Terrence Lyons talks about the balance that lies between providing incentives for dictators to step down and enforcing punishment mechanisms for leaders who have behaved unjustly. |
In cases of wrongdoing, someone who merits certain benefits has lost them, while someone who does not deserve those benefits has gained them. Punishment "removes the undeserved benefit by imposing a penalty that in some sense balances the harm inflicted by the offense."[3] It is suffered as a debt that the wrongdoer owes their fellow citizens. Retributive justice in this way aims to restore both victim and offender to their appropriate positions relative to each other.
Retributive justice is in this way backward-looking. Punishment is warranted as a response to a past event of injustice or wrongdoing. It acts to reinforce rules that have been broken and balance the scales of justice.[4]
Why Retributive Justice Matters
Protracted conflicts often involve violence or cruelty suffered by innocent civilians. In some cases, this violence is carried out systematically, in the form of genocide, ethnic cleansing, enslavement, or systematic racial discrimination. In other cases, rapes, murders, and acts of torture may be carried out more haphazardly.
In those cases where the parties involved are "at war," such actions violate the war convention and the rules of jus in bello. They are war crimes. But even when a war has not been officially declared, these cruel acts of murder and torture constitute human rights violations, prohibited by international law.
Many believe that those who perpetrate such war crimes, or crimes against humanity, should be brought to justice. This is typically accomplished through international courts or tribunals that carry out war crimes adjudication.
Retributive justice is a matter of giving those who violate human rights law and commit crimes against humanity their "just deserts." Punishment is thought to reinforce the rules of international law and to deny those who have violated those rules any unfair advantages. Together with restorative justice, retribution is concerned with restoring victims and offenders to their rightful position.
The Negative Side of Retributive Justice
The idea that we should treat people as they deserve is commonly accepted. We do not think that war criminals should be allowed to live carefree lives after committing unspeakable crimes against humanity.
However, there is a dangerous tendency to slip from retributive justice to an emphasis on revenge. Vengeance is a matter of retaliation, of getting even with those who have hurt us. It can also serve to teach wrongdoers how it feels to be treated in certain ways. Like retribution, revenge is a response to wrongs committed against innocent victims and reflects the proportionality of the scales of justice. But revenge focuses on the personal hurt involved and typically involves anger, hatred, bitterness, and resentment. Such emotions are potentially quite destructive. Because these intense feelings often lead people to over-react, resulting punishments can be excessive and cause further antagonism.
In addition, punishments dictated by revenge do not satisfy principles of proportionality or consistency. This is because revenge leads to punishments that vary according to the degree of anger provoked. Wrongs that do not provoke anger will receive no response. Acts that provoke a great deal of anger will, on the other hand, provoke an overly intense response and lead to reciprocal acts of violence.
For example, resentment about past injustice can "motivate people who otherwise live peaceably to engage in torture and slaughter of neighbors identified as members of groups who committed past atrocities."[5] Devastating inter-group violence in the form of mass killings can result.
It is not surprising that revenge seldom brings the relief that victims seek. The victim simply gets caught up in feelings of hatred.[6] Vengeful motives lead individuals to exact more than necessary, causing even further harm and setting in motion a downward spiral of violence.[7] Once there is this sort of violence break over, it is difficult to break out of the cycle of revenge and escalation. Overly harsh punishments do not make society any more secure and only serve to increase the level of harm done. In addition, in an atmosphere of heightened violence, there is little room for apology or forgiveness for wrongs committed.
Many believe that "the victim should not seek revenge and become a new victimizer but instead should forgive the offender and end the cycle of offense."[8] However, forgiveness does not take the place of justice or punishment, nor does it rule out giving the wrongdoer their just deserts.
Justice, Not Vengeance
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Mark Amstutz, a professor at Wheaton College, finds fault with retributive approaches to justice because they do not pay sufficient attention to how individuals are to reconstruct their lives. |
The idea that wrongdoers should be "paid back" for their bad deeds need not lead to a demand for primitive vengeance.
Retributive justice requires that the punishment fit the crime and that like cases be treated alike. Wrongdoers deserve blame and punishment in direct proportion to the harm inflicted. Retribution can therefore be seen as vengeance curbed by outside intervention and the principles of proportionality and individual rights.[9]
Indeed, one way to avoid the escalation of violence is "to transfer the responsibilities for apportioning blame and punishment from victims to public bodies acting according to the rule of law."[10] It is commonly thought that formal institutions with trained judiciaries are best equipped to carry out just retribution. Such institutions can effectively bring offenders to justice by giving them the punishment they deserve.
In the context of international affairs, there is a need to give wrongdoers what they deserve, but in a way that avoids further escalation of the conflict. War crimes adjudication carried out by international courts is one avenue of retributive justice. The International Criminal Court (ICC), for example, operates on the premise that impunity for perpetrators of genocide, crimes against humanity, crimes of aggression, and war crimes is unacceptable. In March 2012, the Court convicted Thomas Lubanga Dyilo, a major player in the Democratic Republic of the Congo’s Ituri conflict, of the war crimes “of enlisting and conscripting of children under the age of 15 years and using them to participate actively in hostilities.”[11] Lubanga was the first person to be convicted by the tribunal.
Trials for war crimes can convert the desire for revenge into state-managed punishment that is proportional and fair. However, in some cases of large-scale war violence such trials may be unlikely or ineffective. Restorative justice, through reparations or compensation, might often be the more effective option.
Current Implications
When people say they want "justice," in the United States, this most often means retributive justice—they want someone to be punished for his or her wrongdoing and get their "just deserts." In the summer of 2020, after the May 25 killing of George Floyd in Minneapolis, people are calling for the prosecution and conviction of the officer(s) involved. Many are going further than that, however, calling for the "defunding" (i.e., disbandment) of the entire Minneapolis police department, which they apparently view as hopelessly corrupt, incompetent, and/or racially biassed. Citizens in other cities have likewise called for the defunding of their police departments for similar reasons.
But, as this article points out, retributive justice can easily morph into revenge, and can drive the escalation spiral even further. Certainly, the Trump administration's response to the protestors has been highly escalatory, starting with Trump's "when the looting starts, the shooting starts" tweet [12] to the action of federal agents in Portland, Oregon, who, in July, descended on Portland dressed in army fatigues, without identification, and have been tear gassing protestors, seizing some, holding them in unmarked vans for what they call "proactive arrest" without any due process.[13] One was shot with a "less-lethal round" to the head and was critically injured. At least as of this writing in late July, these actions have only increased the number of protestors and violence in Portland, not diminished it. President Trump, meanwhile, is threatening to send federal agents into other, as he calls them, "lawless" cities. So clearly the escalation spiral is spiraling ever upward.[14]
This is not meant to imply that retributive justice is not appropriate in this case. Certainly, people who commit murder, be they private citizens, or police officers, should be tried and duly punished if found guilty. And it is true that this often has not happened in the past. So people were justified to protest to insist that this would happen in this case, and further to insist that changes be made so that such events do not happen again. But once the protests turned violent and the protesters started making more far-reaching demands (e.g. defunding the entire police department), they opened themselves up to the charge of being "lawless" and made a crackdown seem appropriate in the eyes of many.
In addition to driving the escalation spiral, the other problem with retributive justice is that it doesn't help the victim(s) in any way, other than allowing them to feel that, at least, the offender got "what was coming to him or her"—they were punished. But it doesn't help them beyond that with the emotional, social, economic or other harms that they suffered. (It is, of course, quite possible in this case that the family will receive substantial compensation as the result of civil claims that they might file against the Minneapolis police.) But George Floyd's family is not going to be helped by incarcerating the offending officers, nor is policing in Minneapolis necessarily going to improve. Many in the conflict resolution field feel that restorative justice does more to help the victims, repair the relationships, and stop ongoing violence than does retributive justice.
[1] Rachels, James. "Punishment and Desert." In Ethics in Practice, ed. Hugh LaFollette, (Malden, Massachusetts: Blackwell Publishers, 1997), 466. <http://www.jamesrachels.org/punanddes.pdf>.
[2] Murphy, Jeffrie G. Retribution Reconsidered (Norwell, Massachusetts: Kluwer Academic Publishers, 1992), 23.
<http://books.google.com/books?id=p2EeefbHk-QC>.
[3] Cragg, Wesley. The Practice of Punishment: Towards a Theory of Restorative Justice (New York, Routledge, 1992), 15.
Updated edition (2002) available here.
[4] See Jeffrey A. Jenkins's discussion of retributive justice in The American Courts: A Procedural Approach,
(Jones & Bartlett Publishers, 2011). <http://books.google.com/books?id=yvT5SVwbakUC>.
[5] Minow, Martha. Between Vengeance and Forgiveness (Boston, Massachusetts: Beacon Press, 1998), 11.
<http://www.amazon.com/Between-Vengeance-Forgiveness-Genocide-Violence/dp/0807045071>.
[6] Minow, 13.
[7] Minow, 10.
[8] Minow, 14.
[9] Minow, 12.
[10] Minow, 11-12.
[11] "The Prosecutor v. Thomas Lubanga Dyilo." The International Criminal Court. Accessed June 2013. <http://bit.ly/1smInGH>
. See also: "The ICC's First Verdict: Bench-Mark." The Economist. March 17, 2012. <http://www.economist.com/node/21550250>.
[12] Aaron Blake. "‘The only good Democrat is a dead Democrat.' ‘When the looting starts, the shooting starts.’ Twice in 25 hours, Trump tweets conspicuous allusions to violence." The Washington Post, May 29. 2020. https://www.washingtonpost.com/politics/2020/05/28/trump-retweets-video-saying-only-good-democrat-is-dead-democrat/
[13] Dave Goldiner "Homeland Security chief boasts of ‘proactively’ rounding up protesters as crackdown widens" New York Daily News. July 22, 2020. https://www.nydailynews.com/news/politics/ny-chad-wolf-proactive-homeland-security-20200722-66sn2apavnc2tfbzi3anwctzee-story.html
[14] Martin Pengelly "Portland clampdown: why are federal agents there and what are they doing?" The Guardian. July 21, 2020. https://www.theguardian.com/us-news/2020/jul/21/portland-protests-police-unmarked-cars-what-is-happening
Use the following to cite this article:
Maiese, Michelle. "Retributive Justice ." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: May 2004 <http://www.beyondintractability.org/essay/retributive-justice>.
