Assessing the Criminal: Restitution, Retribution, and the Legal Process, edited by Randy E. Barnett and John Hagel III, Cambridge, Mass.: Ballinger, 1977, 404 pp., $16.50.
Justice and Punishment, edited by J.B. Cederblom and William L. Blizek, Cambridge, Mass.: Ballinger, 1977, 220 pp., $16.50.
Neither Cruel nor Unusual, by Frank G. Carrington, New Rochelle: Arlington House, 1978, 223 pp., $8.95.
Recent times saw something of a reigning orthodoxy concerning the proper treatment of criminal wrongdoers. It was widely thought that they ought to be retrained, taught, changed, or rehabilitated so that they might then become productive, noncriminal members of society. Above all, the dogma went, criminal wrongdoers should not be punished—or, more correctly, no one ought to want to punish criminal wrongdoers. The desire to punish was viewed as base, demeaning lust for revenge. Punishment, per se, was thought to be counterproductive.
The rehabilitationists thought that the institutions associated with punishment should be used, not in a backward-looking way to punish for past wrong done to the victim, but to promote some social good—chiefly, the reduction of crime in the future. Clearly that end, the thinking went, could be realized by taking the incarcerated wrongdoer and restructuring his or her character so that he or she would lose the dispositions to criminal behavior that had led to crime in the past. This, it was thought, would certainly be more suited to the end sought than any sort of punitive infliction of suffering. And so it was the view that all "liberal" persons of "enlightened" sentiments should embrace.
For years, this was the reigning dogma of Western punishment theory. Now, that view is dead in intellectual circles. Alternative views of punishment are being presented and debated—hence the books under review here.
The Barnett and Hagel (B-H) volume is largely the proceedings of a Liberty Fund conference, "Crime and Punishment," held at Harvard Law School in 1977. The Cederblom and Blizek book (C-B) is entirely the proceedings of a symposium on criminal justice and punishment sponsored by the Philosophy and Criminal Justice departments at the University of Nebraska at Omaha in 1976, with the addition of a helpful introduction by Cederblom. These scholarly discussions serve, given the distinguished character of their contributors, as something of a bellwether of current thinking on the issue of punishment.
The Carrington book is a defense of capital punishment. It will put off those who believe that the institution of capital punishment ought to be eliminated, its style of intemperate bombast precluding them from reading through the caricature of their views and the attacks on them. And those who already are in favor of the death penalty do not need this book. In a way, though, it is another interesting piece of evidence about the current state of the debate on punishment.
The chief thing that will strike readers of the three volumes under review here is that the rehabilitation model of punishment has come to be discredited and eschewed by the intellectual community. James Q. Wilson writes in B-H: "Today the rehabilitative ideal is everywhere in retreat, though the institutional forms and burdens of pseudo-rehabilitation are very much with us." Martin Golding, in C-B, describes the "erosion of the rehabilitationist ideology that for so long has dominated sentencing and penology. Most rehabilitation programs, it is claimed, are sheer myth.…Many programs, where they do exist, are coercive and demeaning…and they have not been successful in reducing recidivism. More importantly, we do not know how to rehabilitat.…" Finally, Carrington, dripping vitriol all along, writes about those who in his view care more for helping murderers than for the plight of their victims. Carrington does not want us to direct our attention to the future good-making potential of the murderer. Rather, he wants us to kill the murderer as a just reaction to his crime against the victim.
Now that rehabilitationism is dead as a theory of the justification of punishment, what will take its place? John Hospers's essay in C-B is an instructive key to an answer to that question.
Hospers considers the two standard theories of the justification of punishment, utilitarianism and retributivism. And he discusses two recent theories that have been endorsed in libertarian circles—the restitutionist model, championed by Barnett and Hagel in their volume; and the view of Robert LeFevre that we should never punish anybody but should prevent crimes against ourselves by protecting ourselves from criminal activities directed at us.
Hospers rejects both of the latter views. He rejects LeFevre's because, among other things, "no matter how great the precautions we may take to prevent crime, it is humanly impossible for all of it to be prevented. And when…it happens anyway,…what do we do then? Just ignore it?" Hospers rejects restitutionism—which in Barnett's formulation (in B-H) is the view that, since the victim of a crime has suffered a loss at the hands of a criminal, "justice consists of the culpable offender making good the loss he has caused." This is wisely rejected by Hospers because, among other objections, "all reference to intent would disappear if the restitution theory were put into practice.…A person who kills someone through an unlucky accident surely doesn't deserve the punishment that another person does who does it from malice aforethought…though it makes no difference in the amount of restitution (the victim is equally dead both ways).…And if this weren't enough, what about threat of harm not yet done?"
It should be noted that Barnett, in his solo essay defending restitution as "a paradigm of social justice," replies with varying degrees of effectiveness to several criticisms, but the main objection of Hospers just mentioned escapes treatment. That is hardly surprising, for the criticism seems cogent.
Hospers rejects the more traditional theory of utilitarianism, as well. Applied to punishment, utilitarianism is the view that the right act of punishment is the one that will maximize good consequences in the future. In its concern with consequences it is thus, like restitutionism, a kind of teleological theory. Hospers rejects utilitarianism because justice can be flouted by social engineering in keeping with its advice to maximize good. He writes, "the question of what is just punishment and the question of what punishment will have good effects are two distinct questions and the answer to the first need not be the same as an answer to the second."
This is a decisive criticism when good effects are considered in this unqualified way. As I argued, however, in my essay in The Libertarian Alternative (edited by Tibor R. Machan), the best results in a theory of punishment will come from a fine tuning of the teleological or utilitarian theory by the addition of noncircular constraints that disallow treating the individual merely as a means instead of an end. No author in the present volumes seems either to envision or to embrace such a move (although Martin Golding does advise, in a general way, some sort of synthesis of the theories), so it is best to go on to note the theory that seems to have recaptured the imagination of the intellectual community.
Retributivism is back. It is the position that John Hospers endorses in each of his papers in the two anthologies. In C-B it is plain that he is settling on it as the best of a bad lot, but settle on it he does. Others do too. Edmund Pincoffs's piece on coordinating cardinal measures of punishment (such as time spans) with ordinal measures of the gravity of crimes can be seen as a defense of retributivism against a charge usually directed against it. Hugh Bedau endorses certain key claims of retributivism, and this paper can be seen as a first step toward the stronger endorsement of retributivism in his American Philosophical Association address in December 1978, "Retribution and the Theory of Punishment" (Journal of Philosophy, 1978). Martin Golding has kind things to say about it, and Richard Wasserstrom—who, like Hospers, seems to find each general theory of punishment defective—writes as if retributivism has the fewest problems. Last, it is possible to see Carrington's intemperate cries for death to the murderer in response to the death of the victim as a popular, unsophisticated manifestation of the retributivism revival.
I should not like to create the impression that this general shift to retributivism is enthusiastic. Anything but. But it seems to be the live theory of the day.
I close with a reservation. Retributivism is usually viewed as a three-part claim: (a) it is permissible to punish people if and only if they have done wrong; (b) the punishment should "fit the crime"; and (c) this is just, for the infliction of harm for harm done is just. John Hospers labors in C-B to show that retributivism is the claim that "guilt is a necessary condition for punishment," not that "guilt is a sufficient condition for punishment." Now although I find this wording confused, I think from the context that what Hospers is arguing for can be reconstrued as a denial of claim c above in the usual definition of retributivism. If I am right, then it is an unusual sort of retributivism, indeed, that is being argued for. It would take time and space I do not have here to argue for this claim, so I won't.
There is much of value in both anthologies that has not been noted here. The only step that I will take to rectify that defect is to mention that in B-H Thomas Szasz has a fine piece, "Psychiatric Diversion in the Criminal Justice System: A Critique."
J. Roger Lee teaches philosophy at California State University at Los Angeles. His "Reflections on Punishment" is included in the anthology The Libertarian Alternative.
This article originally appeared in print under the headline "Assessing the Criminal; Justice and Punishment; Neither Cruel nor Unusual".