Posted by Eugene Volokh:
Retribution:
[1]Mark Kleiman's post, which has persuaded me to [2]change my views
on the advisability of deliberately painful executions also has an
excellent discussion of retribution as a goal of punishment. Mark
points out that many recent blog posts have argued that retribution --
as opposed to just deterrence, incapacitation, and rehabilitation --
is simply not a legitimate goal of punishment.
Usually the arguments are cast as deprecating "revenge," "vengeance,"
and the like, and by their nature they are not limited to criticizing
deliberately painful executions: They would apply equally to normal
executions as well as prison sentences, if the purpose of the sentence
is retribution (again, as opposed to the utilitarian purposes of
deterrence, incapacitation, or rehabilitation).
Here I've agreed with Mark all along: It seems to me that retribution
is a fundamental and entirely morally proper goal of punishment; and
deriding it as some atavistic desire for vengeance is a mistake. It is
a desire for vengeance, it is indeed psychologically deep-seated, but
it is entirely just. Mark [3]makes many excellent observations about
this -- read his whole post -- but let me just quote the conclusion:
[V]indication of the victim and the expression of social
disapproval of the act both strike me as perfectly sound reasons
for punishment, independent of its function in controlling crime. .
. .
Perhaps you disagree; if so, you're in the majority, in Blogland
though not in the larger world. But if you disagree, then . . .
could you explain to me why we kept chasing Nazi war criminals well
into the 1990s? Was the Third Reich likely to come back? Were we
hoping to deter the next round of mass murderers?
Or if the Nazis are too special a case to deal with, what is the
deterrent and incapacitative justification for pursuing Augusto
Pinochet? Isn't it obvious that Pinochet's victims deserve to have
it shown to the world that what he and his goons did to them wasn't
all right?
I think there are only three possible answers to these questions:
(1) We should punish the old Nazis and others, but only because this
punishment will indeed "deter the next round of mass murderers." I
think this argument is factually extraordinarily implausible -- future
Nazis will expect to win the war, though they may realize that they'll
die while losing the war, or get executed by outraged enemies shortly
after they lose the war. The prospect of possibly being tracked down
when in their 60s will be so remote that it will have next to no
deterrent effect on their current decisions. That's why I think that
these "maybe it'll deter people, but no no no we aren't trying to just
exact retribution against them" arguments are usually just a cover for
a desire for retribution.
(2) No point in going after these people. They're geezers who aren't
going to hurt anyone; let them be.
(3) Track them down and punish them harshly (whether this includes
execution, as with Eichmann, or not), because vengeance is morally
proper, and perhaps even a moral imperative.
I'm with Mark in favor of #3.
References
1.
http://www.markarkleiman.com/archives/crime_control_/2005/03/more_on_volokh_torture_and_retribution.php
2. http://volokh.com/archives/archive_2005_03_13-2005_03_19.shtml#1111216987
3.
http://www.markarkleiman.com/archives/crime_control_/2005/03/more_on_volokh_torture_and_retribution.php
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