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Subject Area: Political Theory

Does Punishment Fit the Crime? - Leonard P. Liggio, Literature of Liberty, January/March 1979, vol. 2, No. 1 [1979]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Does Punishment Fit the Crime?

Walter Kaufmann

  • Princeton University

“Retribution and the Ethics of Punishment.” In Assessing the Criminal: Restitution, Retribution, and the Legal Process. Edited by Randy E. Barnett and John Hagel III. Cambridge, Massachusetts: Ballinger Publishing Co., 1977, pp. 211–230.

Critical ethical reflection invalidates retribution as an ethical basis of legal punishment. That wrongs call for retributive punishment (visiting the “same” or a “proportionate” wrong back on the wrongdoer in an “eye for an eye” fashion) has neither been universally accepted nor is it morally defensible. Retribution and its kindred notion of desert (i.e., the criminal “deserves” to be punished) futilely claims to undo past wrongs. But “the past is not a blackboard, punishments are not erasers, and the slate can never be wiped clean: what is done is done and cannot be undone.”

Three movements have weakened the appeal of retribution in punishment theory: the eclipse of Christianity, the impact of humanitarianism, and the emergence of depth psychology in the works of Dostoevsky, Tolstoy, Nietzsche, and Freud. These thinkers reveal how closely the “law-abiding” citizens resemble the criminal in demanding retributive punishment since such punishment serves as a cathartic release for their darker, unedifying emotions.

The strongest argument against retributive justice is that “punishment can never be deserved” nor wholly proportionate to the crime (as in seducing a child, genocide, or forgery). Not even capital punishment for murder is a commensurate punishment. The sudden death of the murdered victim differs from the criminal's protracted trial and long imprisonment under a death sentence. Desert in punishment theory is a confused notion impossible to calculate. In fact, devising “proportionate” punishment has produced “a veritable pornography of punishment and allowed the sadistic imagination rather free rein” as when Thomas Jefferson urged as a punishment for a polygamous woman: “cutting through the cartilage of her nose a hole of one half inch in diameter at the least.”

Even if retributive punishment could be proportionate, it does not follow that it is ethical or ought to be imposed. No human deserves torture or punishment. Although retribution is untenable as an ethical basis of punishment, punishment itself may possibly be tenable to fulfill other functions such as deterrence or reform. We should, however, be wary of too readily approving restitution (through fines or imprisonment) as a substitute for retribution. Restitution is as much a chimera as calculating “exact” justice. No restitution can restore the status quo ante in the case of raping a child. Restitution, further-more, encourages judges to be arbitrary in meting out “appropriate” penalties.