This is an Accepted Manuscript of an article published by Taylor & Francis in Ethics and Social Welfare published online 16th May 2016. It is available online: http://www.tandfonline.com/ [see link to article below].
ISSN: 1749-6535 (Print) 1749-6543 (Online) Journal homepage: http://www.tandfonline.com/loi/resw20
Revising Wolff’s support for retribution in theories of punishment: desistance, rehabilitation, and accommodating individual and social accounts of responsibility
John Deering & Steven R. Smith
To link to this article: http://dx.doi.org/10.1080/17496535.2016.1183032
Title
Revising Wolff’s support for retribution in theories of punishment: Desistance, rehabilitation, and accommodating individual and social accounts of responsibility
Authors
John Deering, Reader in Criminology & Criminal Justice
Steven R. Smith, Professor of Political Philosophy and Social Policy
Abstract
Jonathan Wolff supports retribution as a justification for punishment in his book Ethics and Public Policy: A Philosophical Enquiry, arguing that the victim’s status and self-respect has been undermined by a crime committed. Punishment responds to these ‘social violations’, with the criminal justice system acting as a ‘communicative mechanism’ to the offender and victim, restoring the status of the victim by punishing the offender. Consistent with Wolff’s ‘bottom-up’ methodological approach to applied ethics, this paper defends his conclusions supporting retribution, for certain crimes at least, but his position needs qualifying and supplementing. We mount a defence of retribution which, contrary to popular views, seeks to accommodate both individual and social accounts of responsibility. This accommodation is achieved by holding the individual offender responsible via retributive justifications of punishment, while also acknowledging the social responsibility of restoring the status of the offender given the social injustice experienced by many offenders, prior to their offending. Following this analysis, and a consideration of empirical studies concerning probation practice, we recommend the practice of desistance as most likely to help reduce re-offending, alongside the social responsibility of other state representatives and social institutions for building socio-economic capital for the offender.
Key words
Applied ethics; desistance; retribution; social justice
Acknowledgements: The first draft of this paper was presented to The Howard League for Penal Reform’s conference ‘What is Justice? Reimagining Penal Policy’ held at the University of Oxford in September 2013. We would like to thank the participants at the conference for their insightful and valuable comments. The first draft was then revised for The Howard League for Penal Reform’s ‘What is Justice?’ working paper series, appearing in March 2014 on its website – see www.howardleague.org/what-is-justice – which is a much shorter and less developed version of this paper.
Introduction
Although Jonathan Wolff is not considered a specialist in penal theory or the philosophy of criminal law, his book Ethics and Public Policy: A Philosophical Enquiry (EPP) is important to consider concerning these subject areas. Wolff’s methodological approach to applied ethics, drawing on his experience of contributing to UK Government committees as a philosophical/ethical advisor, (a) targets philosophical and non-philosophical audiences, and (b) examines the often asymmetrical relationship between applied ethics/philosophy and practical policy-making. Consequently, Wolff’s methodological approach has particular resonance for this journal’s remit, as it too seeks systematically to apply abstract ethical principles to the specifics of policy recommendation and welfare practice, recognising that this task is not straightforward. Wolff’s book also has resonance for those interested in penal theory and the philosophy of criminal law given that one of the chapters is dedicated to this subject, and as we explore here how Wolff’s position regarding these matters relates to his methodological approach, and the development of probation practice within the criminal justice system.
More specifically, in EPP Wolff argues for what he calls ‘bottom-up’ applied ethics, demonstrating the importance of philosophers engaging with public debate, including a proper consideration of well-researched empirical studies. This approach also underpins the methodology of this paper, so addressing directly the concerns of this journal. Nevertheless, attending to abstract theorising and to well-researched empirical studies often complicates ethical analysis. The philosophical premises concerning theories of punishment, for example, are often problematized when considering empirical studies relating to probation practice and the criminal justice system, including, we contend, the premises of Wolff’s own position defending retribution.
This paper mounts a critical defence of Wolff’s core philosophical arguments supporting retribution in criminal law: that certain crimes undermine the victim’s status and so justify punishment for the reasons Wolff outlines. However, we qualify and supplement Wolff’s position accommodating the main themes of ‘desistance theory’. Most notably, we extend the focus and meaning of status in an attempt to accommodate both individual and social accounts of responsibility, thereby adding qualifiers to Wolff’s retributive arguments. For Wolff, restoring the victim’s status through punishing the offender rebalances the moral and social order. We accept this argument, but only if four empirical conditions are met, consistent with Wolff’s ‘bottom-up’ approach to applied ethics:
(1) A negative impact on the victim from the crime committed must be demonstrable.
(2) There are proper procedures, administered at least initially via the criminal justice system, which do in fact restore the victim’s status.
(3) The punishment can be shown to reasonably reflect the crime, with these reasons being explained and understood by the victim, and that the responsibility of the crime committed is located with the individual offender.
(4) Via an account of social responsibility, there is an institutional acknowledgement and response to the need for restoring the status of the offender in many cases – that is, given overwhelming empirical evidence that offenders often suffer multiple social and economic disadvantages before any offence is committed and that these disadvantages, to some degree, underlie such offences.
Moreover, in regards to (4) above, we start with the core assumption of desistance theory which is emerging in probation theory and some practice – that traditional notions of rehabilitation which apply ‘treatment programmes’ uniformly to offenders often do not work. This is because individuals have an idiosyncratic journey to becoming a non-offender which cannot be generalised or uniformly applied through such traditional treatment methods.
Retribution and status restoration – outlining Wolff’s position
Wolff’s book Ethics and Public Policy has a chapter dedicated to examining ethical questions concerning crime and punishment. The central question is, ‘what is so bad about crime that it warrants punishment, and moreover a punishment which is often severe (especially imprisonment)?’ The answer for Wolff lies not in observable facts of injury or loss suffered by the victim, as these can be relatively minor compared with other forms of injury and loss, from, for example, accident or natural events/disasters. It is found in the relationship between the offender and victim, and what is communicated to the latter and wider society via a crime committed (also see Wringe, 2012; Duff, 2001; Bennett, 2008):
... the fact that a crime is something one human being does to another seems to add a further moral or political dimension ... that in picking on you as a target for his or her crime, another person treats you in a particularly undesirable way, showing you lack of respect, or contempt (Wolff, 2011, p. 114).
For Wolff, even an attempted crime regards the victim with contempt (Wolff, 2011, p. 115). Nevertheless, according to Wolff:
A successful crime cuts deeper. It seems to be an assault to the self, even to the point of putting one in a different category – that of victim ... In the case of becoming a victim of crime one loses the sense of being master of one’s fate. Furthermore one can become the object of pity, which many people can find diminishing. But most of all, another person has treated you with contempt, and has succeeded in doing so ... A successful crime seems, in at least some cases, to bring about a change in status and in self-respect. It is, in this respect, transgressive and disruptive of the social order. (Wolff, 2011, pp. 115–116).
These assumptions are controversial certainly, but how do we justify punishment according to Wolff, if they are true at least in some cases? For Wolff, a sound justification for punishment is not based on deterrence – as deterrence has proven to be largely ineffective based on over-simplified and inaccurate accounts of human motivation (Wolff, 2011, pp. 117–123). It is also not through rehabilitation – as rehabilitation misleadingly exaggerates the positive effects of punishment as a means of changing the behaviour of many offenders (Wolff, 2011, pp. 117–123). This leaves what he sees as the other main contender for justifying punishment, namely ‘retribution’. Although, at first glance, retribution looks barbaric as it seems merely to punish for the sake of revenge (and for a seminal statement on this subject see Honderich, 2006). However, if it is examined more closely, relating it to a communicative function and the restoration of status, then retribution has greater justificatory force:
In succeeding in their crime against you … they have victimized you, and left you in a lowered status. Even when there is no identifiable victim – as in the case of vandalism of public property – the successful criminal implies that in some sense he or she is above the norm, or, at least, above the rules. Crime communicates a message ... If so, then punishment appears in a new light. For at least part of the purpose of punishment then becomes to re-establish some sort of proper status between all parties ... In sum, retribution, understood in its communicative form, may be somewhat less barbaric, as a justification of punishment, than it is sometimes thought. (Wolff, 2011, pp. 124–26; and see note 8 below).
Our position accepts this aspect of Wolff’s argument – and that his justification for retribution is plausible for certain crimes especially (for example, burglary, muggings, assault, and theft). In these cases, there is considerable evidence that victims experience the kind of assault on ‘self’ which Wolff describes, and that this requires a communicative response from the authorities to support victims (Crown Prosecution Service, 2015). However, even if we agree with Wolff’s overall conclusions we argue for important qualifications and supplements, consistent with his ‘bottom-up’ approach to applied ethics which, as stated, closely interweaves empirical evidence with philosophical argument.
Desert, proportionality, desistance, and the bottom-up approach
We will now consider further the meaning of retribution to clarify our arguments concerning Wolff’s position. Rachels discusses various justifications for punishment, but makes central to all a ‘principle of desert’, based on the formal principle that: ‘People deserve to be treated in the same way that they choose to treat others’ (Rachels, 2002, p. 468).[1] From this he argues that four other principles are fundamental to any idea of justice in criminal law, that: only the guilty should be punished; all should be afforded equal treatment; punishment should be proportionate; and excuses should be taken into account (Rachels, 2002, p. 471).[2] Consistent with Wolff’s position supporting retribution, Rachels argues that this principled understanding of desert does not equate to primitive vengeance, and is preferable to both deterrence and rehabilitation.
Developing this last point, it is important to acknowledge that in popular discourse and everyday parlance, e.g. within the media, political debate, and so on – the term retribution is often used loosely (so including this more primitive understanding) and is rarely closely defined in ways suggested by Wolff and Rachels. Consequently, retribution becomes associated only with punishment – particularly more severe types such as custody (also see Haist, 2009; Walgrave, 2004; Brunk, 2001; Daly, 2000; Zehr, 1990; Morris, 1977). In addition, popular discourse often conflates retribution with deterrence, where severe punishment is justified, not only because the crime is a wrongdoing directed toward the victim which needs redressing, but also because severe punishment is said to deter the offender and others from committing future crimes.
However, our argument removes the meaning of retribution from these narrow links to only severe punishment and deterrence, and includes the use of any punishment imposed by the criminal justice system. Consequently, retribution can entail a range of punishments, from cautions to discharges, fines, and community orders, as well as more punitive sanctions, such as custody. Given this more comprehensive and nuanced understanding of punishment and retribution, our philosophical justification of retribution is very different to justifications based on simply ‘paying back’ the offender, or on deterrence. Clearly, we need to disentangle these overlaps in popular discourse to mount our defence of retribution, and which will also include accommodating desistance-based rehabilitation (for a similar strategy also see Daly, 2000, and to a lesser extent Morris, 1977, and Zehr, 1990).
After reconceptualising retribution accordingly, the next issue is proportionality, reflecting our view that retribution should be in proportion to the nature of, and harm caused by, the original offence (Zehr, 1990). Whilst this appears an uncontroversial abstract principle, and is consistent with Rachels’ principles of desert defined above, proportionality is difficult to apply in particular cases. This difficulty arises from another question accentuated by our view of retribution, which allows for a wide range of punishments, namely: what specific form of punishment is equivalent to a specific offence? Our understanding of retribution is potentially problematic because notions of equivalence will contain arbitrary elements given the range of punishments which can be administered. Understandings of proportionality too are variously interpreted across different temporal and cultural domains (and see Morris, 1977). For example, over the past twenty-plus years in England and Wales, since the 1993 Criminal Justice Act deliberately reversed the custodial parsimony of its 1991 predecessor, it has been observed that proportionality has spiralled ‘up-tariff’. This has led to significant increases in the use of custodial sentences, despite offending rates declining during the same period (Deering 2011; Mair, 2011). However, this ‘up-tariff’ trend also suggests that proportionality could be re-defined in the opposite direction. Following the previous arguments, the latter response can be based on the assumption that retributive sanctions may only need to be set at minimal levels necessary for justice to be administered (and see Morris, 1977).[3] Therefore, it is possible to view the use of many community orders, and especially most custodial sentences, as unnecessary and disproportionate, as we indeed do, while simultaneously committing to retribution as a legitimate justification of punishment.