happen so much with elevators and buildings, since members of the
dominant group live in buildings and use elevators. It does happen with
violent crime. Perhaps we do not actually love all of our fellow citizens
or want them all to flourish; and academic philosophers, like many other
Americans, are inclined to think that the people who commit crimes are
distant from “us.” Or perhaps we suppose that there is a class of people
(surely not “us”) who are hardwired for violence and predation and can
be deterred only through fear of unpleasant punishment. The fact that
“we” do not think this about the development of “our” own children
shows that the ideas that underlie the demand for harsh punishments
need to be critically scrutinized.
One thing that we do know about crime: early intervention in child-
hood education diminishes the likelihood that these children will become
criminals— if the program is of the right sort. The pathbreaking work
of James Heckman, for which he won the Nobel Prize in Economics in
2000, involves longitudinal studies of a group of preschool projects that
involved not just classroom education but also nutrition and work with
families.25 Results many years later are excellent, in terms of both employ-
ment and law- abidingness. The fact that no society has taken these results
fully to heart is discouraging, suggesting that with all the knowledge we
possess, people still prefer to address crime through the incoherent and
inefficient ideas of anger. There are signs that this inefficient mentality
is shifting in the United States, with interest in preschool on the rise not
only in New York, but in many other parts of the country. On the whole,
however, Heckman’s cogent analysis has fallen on deaf ears.
Why is this so? Racism is surely one reason in the United States: if
you already view a group with fear and disgust, you are likely not to
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choose the measures that demonstrably improve the lives of this group,
even (sometimes) when they may improve your own as well. The fact
that the larger inquiry Bentham rightly recommends is too rarely the
focus of public attention betrays the strong grip of intuitive ideas of pay-
back, but it also betrays the subterranean influence of stigma, disgust,
and fear toward minorities. The idea that all problems of wrongdoing
are best addressed, and rather easily addressed, by simply incarcerat-
ing more people in harsh and degrading conditions has thus become a
very common and intuitively appealing idea— witness Illinois senator
Mark Kirk’s recent statement that gang violence should be addressed by
locking up all eighteen thousand members of Chicago’s leading gangs.
Such an idea at least contains the thought of incapacitation, not just the
retributive idea, so it at least has some relation to human welfare. But it
gets its traction through retribution, the idea of “throwing the book” at
people, etc. And: this idea that cannot stand the light of reason, as Kirk
himself promptly realized.26 Incarceration on the U.S. scale is a quick and
inefficient “fix” for a very complicated set of social problems, and as such
it does not work. I think the only reason it can have even been supposed
to be an acceptable primary strategy to address crime involves racial
stigma, conscious or unconscious.
It is difficult to unravel the tangled skein of emotions involved in
the demand for more and more incarceration. Fear is surely one moti-
vator, and disgust- based racism another. But anger is also a power-
ful force: because these minorities harm us, making our lives insecure
(people think), we ought to punish them for the discomfort they cause.
Thus the zealous focus on victimless crimes such as drug offenses is
surely motivated partly by disgust, but is probably abetted by a general
desire to punish people who are seen as inflicting discomfort and insecu-
rity. In the next chapter, my study of Alan Paton’s Cry, the Beloved Country will study this nexus of emotions further.
In addition to bracketing “punishment,” welfare-
oriented legal
thinkers would do well to put the term “criminal justice system” in scare
quotes for a while, to remind ourselves that what we usually call by that
name is a tiny sliver of a set of institutions that ought to be promoting
social justice for all, including those who may at some point become or
have already become criminals.27
So far as traditional “punishment” goes, the forward- looking legal
system may continue to use incarceration, which incapacitates offend-
ers, and which may contribute to deterrence, but it must look hard at
the evidence that incarceration simply breeds hardened criminals with
nothing positive to live for— thus undermining specific deterrence and
reform, and perhaps general deterrence, given the influence of such hard-
ened offenders in their communities. This inquiry must take seriously the
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183
experience of nations that use prisons far less. Certainly we have no rea-
son to suppose that there is any special deterrent value to be reaped from
unsanitary, violent, and humiliating conditions, which are well known
to breed hopelessness, a sense that crime is the only future, and a very
basic collapse of agency, while they also undermine family and commu-
nity (in that way further undermining general deterrence). Furthermore,
since part of the larger task is rebuilding or supporting relations of political trust, the state must consider how trust and mutual respect among
citizens are affected by its willingness to use punishments that offend
dignity (even if they aren’t found to violate the Eighth Amendment).
Thus the stock debate about the “justification of punishment” seems
both too narrow and too crude: too narrow because it conceives of all our
dealings with wrongdoing, including its deterrence, as forms of payback
ex post, rather than seriously examining the many other possibilities; too crude because what typically goes by the name of punishment gets traction because it seems to people like a form of payback, and payback ideas
prevent the serious consideration of treatment that might actually better
promote general welfare and bonds of trust among citizens.
We must, however, pause at this point: for I have simply assumed,
on the basis of my prior arguments, that the right approach is forward-
looking, rejecting the “blame game,”28 and I have not fully confronted the
strongest retributivist arguments. I have argued against anger, holding
that it is either irrational (in the grip of a fantasy of payback) or unduly
focused on relative status. But retributivist arguments do not always
endorse anger or build their proposals on a validation of anger’s cog-
nitive content. (Nor, indeed, do they always propose extremely harsh
forms of punishment.) So I need to say more at this point about how
my argument so far relates to the subtler forms of retributivism. Because
there is a vast literature on this topic and this is not a book about punish-
ment, I must be highly selective, omitting many
worthy contributions to
the debate and treating others with compression; I do not hope to satisfy
all readers.29
My argument so far is sufficient to disable any form of retributivism
that relies on the lex talionis, that is, any idea that a wrongful act is somehow balanced out or paid back by similar suffering. As I’ve said, this fan-
tasy of payback is simply not rational. Moreover, in daily life we agree.
We never think that the right response to having your wallet stolen is to
steal someone else’s wallet, or that the right response to a rape would
be to arrange for the rapist to get raped. What good would that do? The
fact that the U.S. prison system operates on the basis of a related fantasy
(where rape and humiliating conditions satisfy the payback wishes of
victims) does not make it any more rational. The wrongful act has been
done and cannot be undone; it is mere magical thinking involving a
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strange metaphysics of cosmic balance to suppose that the past is bal-
anced out by a gruesome suffering in the future.
But there are two more sophisticated forms of retributivism still to
consider. First is the famous view of Herbert Morris.30 The second is the
abstract retributivism of Michael Moore.31 Both appear not to rely on the
type of “magical thinking” that I have criticized. However, I shall argue
that both ultimately do rely on it, as well as having other problems.
According to Morris, society is held together by a system of benefits
and burdens. Criminal offenders defect from that system, refusing to bear
their share of the burdens, and/ or seizing benefits to which they are not
entitled. A system of punishment corrects this imbalance, by inflicting
proportional disabilities on the offender. Because he has claimed more
liberty than he has a right to, his own liberty will be proportionally con-
stricted, etc. Morris goes on to argue that persons have a right to be pun-
ished, because that way of treating them— by contrast to a regime that
infantilizes them and treats them simply as ill— treats them with respect,
as rational agents.
Let me begin by enumerating points of agreement with Morris.
A system of law should recognize a wrongful act as a wrongful act. It
should not refuse to distinguish between wrongful acts and mere acci-
dents or cases of diminished responsibility. Moreover, I am prepared to
agree with some aspects of the basic picture of society and of crime from
which he starts, although I am dubious whether the idea of taking undue
liberty is the best way of capturing what is distinctively wrong about
rape, homicide, etc. The idea is so abstract that we lose the sense that
law is about protecting important, and distinct, aspects of human lives.32
That emphasis on human flourishing is important, because if that’s what
we are doing— not primarily preserving an abstract structure— then it
appears that we should choose a solution that actually does promote
human flourishing, and this surely pushes us in a welfarist direction.
The social contract is about and for something; it’s not an agreement for agreement’s sake.
But even if we grant Morris his basic picture, according to which
the criminal has taken someone else’s space or freedom, we now have
the question why the right response to that is a proportional diminu-
tion of the criminal’s freedom. Surely on Morris’s own account what is
important is the protection of a system of equal liberty and a fair regime
of opportunity. So shouldn’t the question be, what treatment of the crimi-
nal is most likely to promote and sustain that fair and balanced system?
There seems no reason to suppose that proportional payback is the most
effective response in terms of what really matters. And why would
Morris urge us to select a system that does not protect human liberty and
opportunity as well as some other imaginable system?
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185
It is at this point that Morris’s view begins to collapse into a version
of the lex talionis, I believe. Although Morris’s idea of payback is far more subtle and symbolic than the standard one, it still gets its grip through
a payback fantasy. For it is only the intuition that proportional payback
makes sense that enables him to bypass the question of its value as a way
of preserving the social contract and, more important, the human well-
being that the contract is really about. Let us think back to chapter 4: a
marriage is a kind of contract. Sometimes one party violates that contract,
seizing “an undue liberty.” Payback fantasies suggest that it is fitting
that this person’s liberty be proportionally diminished (as by a punitive
divorce settlement). That seems to be in keeping with Morris’s picture.
And yet, if what really matters is the happiness of human beings, which
is what the marriage contract is all about, then it is not at all obvious that punitive litigation is the appropriate strategy. Even if what is important
is the preservation of an ideal and equal system of abstract liberties for
all, we need to ask whether punitive payback at divorce time does that,
including children in our calculus. The fact that Morris does not feel the
need to justify his choice of penal (or litigation- related) suffering as a
response to the problem of crime shows, I believe, that he is riding on the
back of powerful intuitions about payback and proportionality that are a
form of magical thinking and not a particularly good way of promoting
the social goals that he actually has. Moreover, his view seems to commit
him to neglecting the fact that many criminals begin life in the harshest
of circumstances, a fact that any attempt at shoring up the social contract
ought to regard as highly salient.
Another problematic aspect of Morris’s view is its underlying picture
of human beings. Apparently people are all eager to steal, rape, and kill;
that’s what they would do with a “greater liberty,” and those “liberties”
are seen (by Morris apparently, and by most people, in his view) as posi-
tive advantages.33 This seems humanly odd (and out of step, I would add,
with the very subtle understanding of human emotions shown in other
essays by Morris). And certainly it is not the message that we want the
legal system of a decent society to communicate about people. We should
not send the message “that th[e] actions [of rapists and murderers] …
are … inherently desirable and rational, and that we object to them only
because, if performed by everyone, they would be collectively harmful.”
We may add that even in terms of his own views, Morris’s focus on
punishment is one- sided. He utterly ignores the victim, whose rights
have been breached, because he is thinking only about inflicting harm on
the perpetrator and not on issues of rectification or restoration. Moreover,
any sensible focus on victims would also demand general forward-
looking thinking about deterrence, which punishment may serve better
or worse, but we have been given no reason to think that proportional
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punishment serves this interest well. The social contract, in short, is about human welfare, and that ought to be the main concern for anyone with
Morris’s views. That it is not betrays, it seems, the deep grip of intuitions about payback on his thinking.
Things initially seem otherwise with the extremely abstract retribu-
tivism advocated by Michael Moore. Moore carefully distinguishes his
view from a view built upon angry emotions. He also distinguishes
it from all versions of the lex talionis. In his view, retributivism is just the view that moral desert is both necessary and sufficient for punishment, where punishment is not understood in terms of welfare or conse-
quences. Because the view is so spare and so unconnected to any type of
consequence, it is difficult to justify, and Moore grants this. Nonetheless,
he argues, it could be justified in two ways: either by showing that it
follows from an appealing set of general principles, or by showing that
it best accounts for our particular judgments. He takes Morris to have
pursued the first course; he will pursue the second.
At this point, Moore falls back on the standard examples of emotion-
ally satisfying payback that we can all summon up. Front and center is
an example of the execution of a murderer who has committed revolting
and horrible crimes. A friend of the victim’s exults and feels the execution
is exactly right, despite the presence of anti- death- penalty protesters.34 To me this is quite unsatisfactory. Nobody could doubt that retribution is
very popular and conforms to many deep- seated intuitions. But we need
something more, some overall account of why those intuitions rather than
others that conflict with them should be taken to be reliable. As chapter 2
already showed, even the iconic “manly man” often eschews retribution
in favor of welfare. And we all have powerful intuitions that go in the
direction of Dr. King, as well as (no doubt) conflicting retributivist intu-
itions. So it seems to me that the case must be made in some more sys-
tematic and principled way. Even more problematic is the fact that Moore
relies on this example in a way that rides on a newspaper description
laden with gruesome rhetoric, which, by his own account, is one of many
“examples … used [by this journalist] to get the blood to the eyes of read-
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