deterrence v rehab (!)
I was really interested in Shelby’s rejection of the role of punishment as retribution. He is very clear that “nothing [he] say[s] here about ‘punishment’ or ‘penalties’ should be construed as endorsing retributive ideas” (52). This is also why, when he lays out the principles of nonideal theory in Dark Ghettos, crime control (the third family of principles) is not part of the corrective justice framework: punishment and penalties have nothing to do with retribution, corrective action, or moral penalization. I am a little troubled by the view that punishment should solely be about deterrence, particularly because I think it may dilute the implementation of rehabilitative programs.
Deterrence, as a primary goal, operates on the logic that fear of punishment will prevent individuals from committing crimes. This means that, when determining the ‘burden’ of suitable punishment, it will be whatever is most effective and least costly (when I speak of ‘cost,’ I mean in terms of justice; as Shelby says, “we should cause no more suffering than is necessary to protect people from harmful wrongdoing” (52)) to the ends of preventing the crime from occurring. The ‘rehabilitation’ portion of the punishment would likely not be proportional, then, to what is required. Rehabilitation stems from moral views, because the point of rehabilitation and reintegration programs is to reform individual moral agency (such that the crime is not committed again) and to realign the individual with societal norms (yet again, dictated by social morals). Rehabilitation necessarily requires a more individualized, restorative approach, whereas deterrence practically requires a generalized, one-size-fits-all approach that focuses on making the punishment severe enough to discourage criminal behavior. So while I don’t think that prioritizing deterrence precludes rehabilitation, I worry that in practice, it will yield suboptimal levels of rehabilitation.
A related point of clarification: Shelby says that Davis says “she is not against holding individuals, even deeply disadvantaged persons, accountable for their harmful acts” (63), but earlier in the text claims that Davis does not accept retributive justifications of punishment (52). What is the difference between accountability and retribution?
From the traditional retributive perspective, punishment is justified by the idea that wrongdoers deserve punishment because they’ve committed an immoral act. Retribution is often seen as a moral response to wrongdoing, where the punishment serves as a form of moral payback or a way to balance the scales of justice, because the punishment would ideally be proportional to the crime. Accountability implies that the person is responsible for their actions and that there must be consequences for those actions, so there is a distinction between the two in theory. But, from what I assume is the anti-retributory perspective, this stems from our inability to legitimately ascribe one's actions purely to their moral character; if someone is operating within an unjust society, our judgment about the actions deemed ‘immoral’ are clouded. Therefore, we cannot legitimately assign full responsibility to the individual committing the crime, or retaliate. Accountability, then, should also be struck if we use this logic. For example, if poverty, trauma, lack of education, etc., actively constrain the development of some individual’s moral agency, accountability (or personal responsibility) cannot be established when there are an infinite number of systematic features that have led to the individual having a less socially-aligned moral agency. This is a similar line of reasoning that is used for reducing sentences for those with mental illnesses, for example. I'm not saying I agree with this view (I am definitely leaning against it), but I am curious to know what the accountability vs retribution distinction looks like in practice.
I do not believe that the rejection of retribution as a justification for punishment means that Shelby believes deterrence is the only/best remaining justification. Here, the part of your comment I take issue with is: "I am a little troubled by the view that punishment should solely be about deterrence." I do not think—that by rejecting retribution—Shelby automatically has this view. Retribution and deterrence are not the only two justifications for punishment.
ReplyDeleteFirst, as a point of clarification, I think it is helpful to define the term "retribution." To assert the rejection of retribution as a justification for punishment, Shelby writes that Davis (and, as it follows, himself) "does not think that the public has a right to seek revenge or retaliate against those who break the law" (51). Here, retribution is when revenge or retaliation are used as justification for punishment. By writing in your post that "from the traditional retributive perspective, punishment is justified by the idea that wrongdoers deserve punishment because they’ve committed an immoral act," it seems that you may have broadened the definition of retribution beyond what Shelby and Davis reject.
Shelby discusses other justifications for punishment beyond retribution and deterrence, such as incapacitation. Incapacitation imprisons someone because, "if the incarcerated person is a known danger to others or themselves, then they must sometimes be deprived of items that could inflict grave bodily harm" (47-48). It is easy to see how, under your broadened understanding of retribution, incapacitation may have also been rejected by Shelby and Davis. But, incapacitation is distinct from retribution because it has nothing to do with a need for retaliation, only a need for physical restriction. Shelby makes this distinction clear: "there is a conceptual and moral difference between incarcerating persons to prevent them from harming others (by restricting their movement to a highly limited and enclosed space) and incarcerating persons to penalize them for harmful actions they have already taken" (50). Incapacitation is also distinct from deterrence because the former focuses on physical restriction, while the latter focuses on a mental change that would prevent future crimes. I believe further distinction follows with other justifications for punishment such as rehabilitation or restoration, but I won't discuss these in depth here.
I am not sure if this understanding of retribution (or the distinction between it and other forms of punishment justifications) answer your question about the difference between accountability and retribution, but this is something we may discuss.
I do think your points are interesting to consider as flaws of deterrence as a justification of punishment, but I do not think that they correctly respond to Shelby's views because Shelby does not propose deterrence as THE justification for punishment.
Hi Zach! Excited to discuss this in seminar further, but just in case we don't get to this discussion, I couldn't resist responding. A couple things:
Delete1. I view incapacitation as a derivative of deterrence, in that it is a preventative measure (as you also claim) rather than a corrective one. When it comes to the point I make about rehabilitation, I think incapacitation could yield the same issue of lower rehabilitation rates. If we only consider how the crime may be prevented, whether for the individual him/herself or by other people witnessing the punishment being administered, incapacitation can be efficient, cost-effective (again in terms of justice), but also completely ignorant to the necessity for rehab! As Sam points out, Shelby is definitely a proponent of rehabilitation (and indeed argues for it many times), but I don't see how your point addresses my main issue regarding rehabilitation.
2. Shelby DOES cite other examples of the roles of punishment: "Retribution, deterrence, consent, forfeiture, fairness, reconciliation, rehabilitation, moral education, and other things" (3). He also is definitely concerned with, in particular, fairness, moral education, and rehabilitation. I definitely should have included this in my original blog post, but I am not trying to say that Shelby does not value these things. However, I think they can all be broadly categorized into either a corrective response or a preventative one. Retribution is indeed about "seeking revenge" for those who break the law, but also about punishing those who do something "wrong" from the perspective of the state/law. Shelby also says that "crime control...attempt[s] to minimize and deter individual noncompliance with what justice requires" (DG 12), highlighting the priority of deterrence as a justification for him. These are parts of why I feel like, ultimately, deterrence is Shelby's main justification for punishment and crime control, and rehab/fairness/moral education fit under his second principles of nonideal theory (rectification).
Hi Aria! I really like your analysis and your concerns about how prioritizing deterrence might dilute rehabilitation efforts.
ReplyDeleteOne point I’d like to bring into the conversation is Shelby’s view of accountability, particularly as it relates to his idea of natural duties. Like you mentioned, Shelby rejects retributive punishment, but he does not absolve individuals of personal responsibility. In fact, he argues that even the ghetto poor, despite being the primary victims of systemic injustice, retain natural duties, including the duty of justice (“When an institutional arrangement is seriously unjust, the duty of justice still has a claim on us” (DG 57).
I think to Rawls accountability is applicable, even in deeply unjust contexts, because individuals retain agency and the capacity to make moral choices within their constrained circumstances (58). To him, retribution is punitive and rooted in the idea of punishment proportional to offense. Shelby rejects this notion because it fails to account for the systemic factors that shape individuals’ actions. I would argue that Shelby’s understanding of accountability, on the other hand, focuses on recognizing agency and holding individuals responsible for their own choices while still recognizing constraints imposed by unjust social conditions. In this way, accountability differs as in that it does not aim to inflict suffering but rather seeks to encourage individuals to fulfill moral duties and contribute positively.
In terms of punishment and rehabilitation, I think Shelby’s framework actually supports a more balanced approach. By rejecting retribution, he shifts the focus to practical outcomes, including something like deterrence. However, his emphasis on natural duties and accountability also opens up space for rehabilitation programs aimed at helping individuals develop moral agency and reintegrate into society. Recognizing systemic injustice hand in hand with individual agency might actually highlight the need for context-sensitive, individualized rehabilitation programs within a deterrent framework that address both structural barriers and personal development. In my mind, this would be an integrated approach by which immediate concerns can be addressed through deterrence and long-term concerns can be managed by rehabilitation without the two stepping on each others’ toes.
Your concern that deterrence might overshadow rehabilitation is absolutely valid, but I think if Shelby’s conception of punishment isn’t about moral payback but rather fostering justice and preventing harm, then rehabilitative programs would be an essential tool to achieve his goals.