Retributive justice

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Retributive justice is a legal punishment that requires the offender to receive a punishment for a crime proportional or similar to its offense.

As opposed to

Some purposes of official retribution include:[7]

• to channel the retributive sentiments of the public into the political and legal systems. The intent is to deter people from resorting to
  vigilante
  self-help.
• to promote
  social solidarity
  through participation in the act of punishing, under the theory that "the society that slays together stays together."
• to prevent a situation in which a citizen who would have preferred to obey the law as part of his
  civic responsibility decides that he would be a fool to not violate it, when so many others are getting away with lawlessness that the point of his obedience
  is mostly defeated.

In the 19th century, the philosopher Immanuel Kant argued that retribution is the only legitimate form of punishment the court can prescribe:^[9]

Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime.

— Metaphysics of Morals § 49 E.

Kant regarded punishment as a matter of justice, which must be carried out by the state for the sake of the law, not for the sake of the criminal or the victim. He argues that if the guilty are not punished, justice is not done and if justice is not done, then the idea of law itself is undermined.^[10]

One of the reasons for the abandonment of retribution by many legal systems in the 20th century was the abandonment of the concept of personal autonomy, which had become discredited.^[7] While retributive justice is usually considered as a cornerstone of criminal punishment, it has been shown that it also plays a role in private law.^[11]

Principles

According to the Stanford Encyclopedia of Philosophy, retributive justice is committed to three principles:^[12]

• "Those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer a proportionate punishment."
• It is "intrinsically morally good—good without reference to any other goods that might arise—if some legitimate punisher gives [those who commit certain kinds of wrongful acts] the punishment they deserve."
• "It is morally impermissible intentionally to punish the innocent or to inflict disproportionately large punishments on wrongdoers."

Proportionality

Proportionality requires that the level of punishment be related to the severity of the offending behaviour. An accurate reading of the biblical phrase "an eye for an eye" in Exodus and Leviticus is said to be: "only one eye for one eye",^[13] or "an eye in place of an eye." However, this does not mean that the punishment has to be equivalent to the crime. A retributive system must punish severe crimes more harshly than minor crimes, but retributivists differ about how harsh or soft the system should be overall. The crime's level of severity can be determined in multiple ways. Severity can be determined by the amount of harm, unfair advantage or the moral imbalance that the crime caused.

Traditionally, philosophers of punishment have contrasted retributivism with utilitarianism. For utilitarians, punishment is forward-looking, justified by a purported ability to achieve future social benefits, such as crime reduction. For retributionists, punishment is backward-looking, justified by the crime that has already been committed. Therefore, punishment is carried out to atone for the damage already done.^[14]

Subtypes

Retributive justice is of two distinct types. The classical definition embraces the idea that the amount of punishment must be proportionate to the amount of harm caused by the offence. A more recent version advocated by

A retributive justice system's assessment of blameworthiness (or lack thereof) can either justify punishment or serve merely to limit the punishments society imposes for other reasons.[7]

Criticisms

Many jurisdictions that adopt retributive justice, especially in the United States, use mandatory sentencing, where judges impose a penalty for a crime within the range set by the law. However, judges have limited discretion to consider mitigating factors, leading to lesser penalties under certain circumstances.^{[citation needed]}

When the punishment involves a fine, the theory does not allow the financial position of an offender to be considered, leading to situations in which a poor individual and a millionaire could be forced to pay the same amount. Such a fine would be punitive for the poor offender while insignificant for the millionaire.^[15] Instead of pure retribution, many jurisdictions use variants such as the European Union's emphasis on punitive equality, which base the amount of a fine not just on the offense but also on the offender's income, salary, and ability to pay. Consequently, in 2002, a senior Finnish executive at Nokia was given a fine of €116,000 (US$103,000) on a traffic ticket issued for driving 75 km/h (47 mph) in a 50 km/h (31 mph) zone,^[16] based on his income of €14 million (US $12.5 million) per year. Similarly, a Finnish businessman was required to pay €54,000 based on his yearly income of €6.5 million, making the fine equally punitive as a typical €200 (US$246) fine for the same offense would have been had it been issued to a Finn earning an average salary.^[17] The retributive theory's lack of consideration of the perpetrator's and victim's status has led many jurisdictions to move away from it in various ways, including punitive equality and taking into consideration the status and wealth, or lack of status and wealth, of an offender and their consequent ability to both pay fines and defend themselves effectively in court.

One critique of some concepts of

Traditional alternatives to retributive justice have been exile and shunning. In pre-modern societies such sentences were often the equivalent of the death penalty as individuals would find it impossible to survive without the support and protection of the society that they had wronged.^{[citation needed]}

Modern alternatives to retributive measures include psychiatric imprisonment, restorative justice and transformative justice. A general overview of criminal justice puts each of these ideals in context.

One

• Capital punishment
• Eye for an eye
• Penal harm
• Proportionality (law)
• Restorative justice
• "
  Two wrongs make a right
  "

References