Consider, for example, being the sentencing judge for a rapist who was just convicted in your court. Suppose that he has since suffered an illness that has left him physically incapacitated so that he cannot rape again, and that he has enough money to support himself without resorting to criminal activities. Suppose that this suffices to ensure that there is no need to deter or incapacitate him to prevent him from committing serious crimes in the future. Suppose, in addition, that you could sentence him to spend his days on a tropical island where he has always wanted to go, and where he will spend most of his days relaxing and pursuing his interests. You can, however, impose one condition on his time there: he must regularly report to a prison to be filmed in prison garb, and these videos will be posted online, sending the message that he is serving hard time for his crimes. As long as this ruse is secure from discovery, it could meaningfully contribute to general deterrence. But even if the goods normally cited by consequentialists to justify punishment—incapacitation and deterrence—are achieved, is that the sentence he should receive? Many share the intuition that there is still some reason to want him to be punished more harshly
retributivism provides a necessary condition for punishment, but consequentialist considerations provide the reasons to punish
five elements of punishment that are central for the purpose of understanding retributivism
First, punishment must impose some sort of cost or hardship on, or at the very least withdraw a benefit that would otherwise be enjoyed by, the person being punished
Second, the punisher must inflict hard treatment intentionally, not as an accident, and not as a side-effect of pursuing some other end
Third, the hardship or loss must be imposed in response to an act or omission
Fourth, the act or omission ought to be wrongful.
Fifth, it is best to think of the hard treatment as imposed, at least in part, as a way of sending a message of condemnation or censure for what is believed to be a wrongful act or omission
The paradigmatic wrong for which punishment seems appropriate is an intentional or knowing violation of the important rights of another, such as murder or rape
One prominent way to delimit the relevant wrongs, at least for state punishment, is to say that only public wrongs may be the basis for punishment
hree ideas that are sometimes confused with retributivism: lex talionis, retrospective criminal justice, and sublimated vengeance.
retribution … comes from Latin … retribuere [which] is composed of the prefix re-, “in return”, and tribuere, literally “to divide among tribes”
tort-like idea, that when members of one tribe harm members of another, they have to pay compensation to keep the peace
oncept of retributive justice has evolved, and any quest for its justification must start with the thought that the core of the concept is no longer debt repayment but deserved punishment.
positive desert claim holds that wrongdoers morally deserve punishment for their wrongful acts
[A] retributivist is a person who believes that the primary justification for punishing a criminal is that the criminal deserves it”
there is some intrinsic positive value in punishing a wrongdoer
the view that wrongdoers forfeit their right not to suffer proportional punishment, but that the positive reasons for punishment must appeal to some other goods that punishment achieves, such as deterrence or incapacitation
Wrongdoing, on this view, is merely a necessary condition for punishment.
negative retributivism seems the most apt,
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