What Is Retributive Justice?

Retributive justice is a system of criminal justice that focuses solely on punishment, rather than deterrence—prevention of future crimes—or the rehabilitation of offenders. In general, retributive justice is based on the principle that the severity of the punishment should be in proportion to the seriousness of the crime committed.

While the concept of retribution dates to pre-biblical times, and while retributive justice has played a major role in current thinking about the punishment of lawbreakers, the ultimate justification for it remains contested and problematic.

Theory and Principles 

Retributive justice is based on the theory that when people commit crimes, “justice” requires that they be punished in return and that the severity of their punishment should be proportionate to the seriousness of their crime.

While the concept has been used in a variety of ways, retributive justice is best understood as that form of justice committed to the following three principles: 

• Those who commit crimes–especially serious crimes—morally deserve to suffer a proportionate punishment.
• The punishment should be determined and applied by officials of a legitimate criminal justice system.
• It is morally impermissible to intentionally punish the innocent or to inflict disproportionately harsh punishments on wrongdoers.

Separating it from sheer revenge, retributive justice should not be personal. Instead, it is directed only at the wrongdoing involved, has inherent limits, seeks no pleasure from the suffering of wrongdoers, and employs clearly defined procedural standards.

According to the principles and practices of procedural and substantive law, the government through prosecution before a judge must establish the guilt of a person for violation of the law. Following the determination of guilt, a judge imposes the appropriate sentence, which can include a fine, imprisonment, and in extreme cases, the death penalty.

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Retributive justice is to be applied swiftly and must cost the criminal something, which does not include the collateral consequences of the crime, such as the pain and suffering of the offender’s family.

Punishment of offenders also serves to restore balance to society by satisfying the public’s desire for vengeance. Offenders are considered to have misused society’s benefits and have thus gained an unethical advantage over their law-abiding counterparts. Retributive punishment removes that advantage and tries to restore balance to society by validating how individuals ought to act in society. Punishing criminals for their crimes also reminds others in society that such conduct is not appropriate for law-abiding citizens, thus helping to deter further wrongdoing.

Historic Context

The idea of retribution appears in the ancient codes of laws from the ancient Near East, including the Babylonian Code of Hammurabi from around 1750 BCE. In this and other ancient legal systems, collectively referred to as cuneiform law, crimes were considered to have violated other people’s rights. Victims were to be compensated for the intentional and unintentional harms they suffered, and offenders were to be punished because they had done wrong. 

As a philosophy of justice, retribution recurs in many religions. There are mentions of it in several religious texts, including the Bible. Adam and Eve, for example, were cast out of the Garden of Eden because they violated God’s rules and thus deserved to be punished. In Exodus 21:24 direct retribution is expressed as “an eye for an eye, “an eye for an eye, a tooth for a tooth.” Plucking out the eye of a person of equal social standing meant that one’s own eye would be put out. Some penalties designed to punish culpable behavior by individuals were specifically tied to outlawed acts. Thieves, for example, had their hands amputated.

In the 18th century, German philosopher and Enlightenment-era thinker Immanuel Kant developed a theory of retribution based on logic and reason. In Kant’s view, the only purpose punishment should serve is to penalize the criminal for committing a crime. To Kant, the punishment’s effect on the criminal’s likelihood of being rehabilitated is irrelevant. The punishment is there to punish the criminal for the crime they have committed—nothing more, nothing less. Kant’s theories created, coupled with the very nature of retributive justice fueled the arguments of Kant’s modern critics who argue that his approach would lead to harsh and ineffective sentencing.

Kant’s views led to the theory of “just deserts,” or the now more prominent views on the subject of the punishment of criminals that offenders must deserve to be punished. Ask people on the street why criminals should be punished, and most of them are likely to say “because they ‘deserve’ it.”

Kant goes on to suggest that adhering to the law is a sacrifice of one’s right to freedom of choice. Therefore, those that commit crimes gain an unfair advantage over those that do not. Punishment, therefore, is necessary as a means to rectify the balance between the law-abiding citizens and the criminals, removing any unfairly gained advantage from the criminals.

Many legal scholars argue that widespread adoption of Kant’s theories has resulted in a trend of modern criminal justice systems to criminalize too much conduct, such as the simple possession of small amounts of marijuana, and to punish those conducts too severely—or to “over-prosecute” and “over-sentence.”

As philosopher Douglas Husak argues, “[t]he two most distinctive characteristics of . . . criminal justice in the United States . . . are the dramatic expansion in the substantive criminal law and the extraordinary rise in the use of punishment. . . . In short, the most pressing problem with the criminal law today is that we have too much of it.”

Critiques

No form of punishment has ever been or ever will be universally popular. Many critics of retributive justice say that it becomes obsolete as societies become more civilized, outgrowing their need or desire for revenge. It becomes all too easy, they argue, to slip from retributive justice to an emphasis on revenge. Because revenge typically involves anger, hatred, bitterness, and resentment, resulting punishments can be excessive and cause further antagonism.

However, there is a dangerous tendency to slip from retributive justice to an emphasis on revenge. Vengeance is a matter of retaliation, of getting even with those who have hurt us. It can also serve to teach wrongdoers how it feels to be treated in certain ways. Like retribution, revenge is a response to wrongs committed against innocent victims and reflects the proportionality of the scales of justice. But revenge focuses on the personal hurt involved and typically involves anger, hatred, bitterness, and resentment. Such emotions are potentially quite destructive. Because these intense feelings often lead people to over-react, resulting punishments can be excessive and cause further antagonism leading to reciprocal acts of violence. In addition, revenge alone seldom brings the relief that victims seek or need.

Others argue that simply punishing criminals fails to address the underlying problems that may have led to the crimes in the first place. For example, jailing petty thieves in depressed high crime neighborhoods does little to solve the social causes of the thefts, such as unemployment and poverty. As illustrated by the so-called “broken windows effect,” crime tends to perpetuate itself in such communities, despite aggressive arrest and punishment policies. Some offenders need treatment rather than punishment; without treatment, the cycle of crime will continue unabated.

Other critics say that attempts to establish a satisfactory scale of punishments for crimes are not realistic. As evidenced by the controversies over federal sentencing guidelines to be applied by judges in the United States, it is difficult to take into account offenders’ many different roles and motivations in committing crimes.

Today, integration of the current system of retributive justice, with a recently developed approach of restorative justice, has shown promise in reducing the harshness of contemporary sentencing while also providing meaningful relief to crime victims.  Restorative justice seeks to evaluate the harmful impact of a crime on its victims and determine what can be done to best repair that harm while holding the person or persons who caused it accountable for their actions. Through organized face-to-face meetings among all parties connected to a crime, the goal of restorative justice is to reach an agreement on what the offender can do to repair the harm caused by their offense rather than simply handing out punishment. Critics of such an approach argue that it can create conflicts between the reconciliation objective of restorative justice and the condemnatory objective of retributive punishment.

Sources

• Wharton, Francis. “Retributive Justice.” ‎Franklin Classics, October 16, 2018, ISBN-10: 0343579170.
• Contini, Cory. “The Transition from Retributive to Transformative Justice: Transforming the System of Justice.” GRIN Publishing, July 25, 2013, ISBN-10: ‎3656462275.
• Husak, Douglas. “Overcriminalization: The Limits of the Criminal Law.” ‎ Oxford University Press, November 30, 2009, ISBN-10: ‎0195399013.
• Aston, Joseph. “Retributive Justice: A Tragedy.” Palala Press, May 21, 2016, ISBN-10: 1358425558.
• Hermann, Donald H.J. “Restorative Justice and Retributive Justice.” Seattle Journal for Social Justice, 12-19-2017, https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1889&context=sjsj.