Why I am a Retributivist (sort of)

Philosophers, even when old dogs (well, I’m 57), should be able to learn a few new tricks. My mind has changed on a number of issues in just the last few years. For one thing, two books, Hilary Kornblith’s Knowledge and its Place in Nature and Robert Fogelin’s Walking the Tightrope of Reason, disabused me of my former naïve, knee-jerk internalism, and I am now an unabashed epistemological naturalist and externalist. Another change of outlook was not brought about by philosophical reading. I think it was the George W. Bush administration that did it. I have become a moderate retributivist in my view of punishment and its justification. In a debate with William Lane Craig twelve years ago, I roundly condemned every form of retributivism as barbaric and irrational. What good, I demanded, is served when the wicked are made to suffer, not because of any justifying good, like deterrence or reforming the offender, but simply because they are deemed to deserve to suffer? I think that Bush, Cheney, Rumsfeld, Rove, Rice, Wolfowitz, Feith, Ashcroft, Gonzales, and that whole gang of stock villains straight from Central Casting helped me gain the insight.

Why should despicable people who have done incredibly rotten things suffer for their misdeeds, even if their suffering does not reform them, edify them, deter them or anyone else, or lead to any good consequence? Because they deserve it. Full stop. It is not that allowing the vile to prosper and grow old, fat, sassy, unrepentant, and unpunished conflicts with our ethical intuitions. It is much deeper than that. We simply cannot live with it. Suppose that someone gets roaring drunk, takes to the road at a high speed and causes a terrible accident that kills three teenage girls. The police screw up and do not take him into custody. The next day he catches a plane back to his native Nepal—and lotsa luck ever getting him back for prosecution. This really happened here in Houston just recently. Or think about Charles Keating, who presided over the Savings & Loan debacle in the 1980’s. I saw a clip of him leaving the courtroom during one of his trials, and a frail elderly lady blocked his path. “Mr. Keating,” she quavered, “You took all my life’s savings and now I have nothing.” Keating gave her a sneer and brushed past. He is now out of prison and has never admitted to any wrongdoing. My late, great colleague Stephen Rosoff co-authored a book Profit Without Honor that details the cases of dozens of white-collar criminals whose avarice, cruelty, and callousness almost defy belief. Don’t read it if you are off of your blood pressure medicine.

One of our deepest moral convictions is that the good deserve rewards and the bad deserve punishment. This conviction is probably hardwired, a genetic heritage of our primate past. It is so deep a conviction that I would say it is what Hume called a natural belief. Hume recognized that there were some beliefs—such as the existence of an external physical world and that other people have minds—that are spontaneous, non-inferential, and impervious to skepticism. Much more recently John Searle characterized such beliefs as “default beliefs.” Like the default settings on a computer, they are the beliefs that simply come with an operating human mind, and, unlike a computer’s setting, very hard (I’d say impossible) to change. I think certain moral convictions are default settings, that is, they unavoidably come into play whenever we engage in ethical discourse or reflection. Moral language that lacked the basic notion of desert—that the good deserve reward and the bad deserve punishment—just would not be moral language. It would be like trying to discuss baseball and never mentioning pitching.

Further, our deepest convictions about desert and punishment simply cannot be given a consequentialist justification. Surely it is a good thing that Adolf Eichmann, the coordinator of Hitler’s “final solution” to “the Jewish problem” was captured, put on trial and punished, even if his punishment did not reform him or anyone and even if it deterred no future crimes. Consider Josef Mengele, the “angel of death” at Auschwitz, responsible for the insane “medical” experiments on inmates. Is it not outrageous that he escaped justice for decades and eventually died in a drowning accident in the late 1970’s? Would be not still be equally outraged were we somehow assured that capturing, trying, and punishing him would have served no ulterior good? The utilitarian’s preachments about all pain per se being bad, and justified only by its consequences, have a noble and high-minded sound. In comparison, the retributivist, in saying that some pain is good per se sounds primitive, vindictive, and plain mean.

Things get even worse when we think about the possibility of hell. If retribution is good, and some

escape it in this life, would it not be good if they were punished in the next life? I would have to give this a highly qualified “yes.” What qualifies it is this: Some punishments are too horrendous to be inflicted on anybody, however rotten they are. We have not always felt this way. Just a few centuries ago in the most civilized societies, criminals were regularly broken on the wheel, burned at the stake, drawn and quartered, torn apart with red-hot pincers, thrown to wild beasts, stoned, impaled, etc. We, at least in liberal democracies, no longer subject even the worst criminals to such treatment. Why? It is not that criminals have gotten any better; we have. We no longer respect the lex talionis, the demand for strict and equivalent retaliation—an eye for an eye. Even here in Texas we are beginning to see a difference between justice and payback. Sure, we have executions about as often as Dallas has 100 degree days, but we do not hack the ax-murderer to death, we use lethal injection, which is supposed to be painless.

So, a hell of eternal torment is a bit too rich for my blood, even now that I am a retributivist. The traditional doctrine of hell retains the doctrine of lex talionis in its full fury. What about a non-traditional hell? In The Problem of Pain C.S. Lewis hints at an idea of hell that seems appealing to me. Lewis, like Jean Paul Sartre (and I bet this is the first time that those two have ever been compared), seems to think that it is the people in hell who make it hellish. Surely, if you had a place occupied by brutal dictators, sadistic serial killers, slave traders, pedophiles, talk radio pundits, TV preachers, and big oil company executives—that would be hell, even if the accommodations were luxurious. Imagine then, hell as a sort of giant Las Vegas casino, with no torments and lots of degrading pleasures, and occupied by really rotten people. I would have no objection to a lengthy sentence (not eternity) in such a hell for many miscreants.

Okay, then, I am now a retributivist. I don’t like it, but there it is. Someone please talk me out of it.